XXX
XXX
Plaintiff in Pro Per.
SUPERIOR COURT OF THE STATE OF XXX
FOR THE COUNTY OF XXX
| TANIA BATACHE,
Plaintiff, vs. SPECIAL DEFAULT SERVICES, INC., a California Corporation; XXX, an individual; XXX, an individual, XXX, an individual and XXX, inclusive, Defendants. |
CASE NO.: XXX
Unlimited Jurisdiction Date Action Filed: January XXX Assigned for All Purposes to XXX DEPT. 69 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION Date: Time: Dept.: Res ID.: Trial Date: |
NOTICE OF MOTION FOR SUMMARY JUDGMENT
PLEASE TAKE NOTICE THAT Plaintiff will move the court at the time and place specified above, for summary judgment or, in the alternative summary adjudication: 1) on Plaintiffs’ First Amendment claims (5th, 7th and 8th causes of action). This motion is made upon the grounds that no material dispute exists as to the above claims, and Defendant cannot establish any defense to the said claims.
This motion is based upon this notice of motion and motion, the declarations of __________________as well as the complete records contained in the court’s file in this matter, and such further evidence, whether documentary or oral, as may be presented at the time of the noticed hearing.
Dated; January__________XXX
TANIA BATACHE
XXX
Plaintiff in Pro Per.
MEMORANDUM AND POINTS OF AUTHORITIES
- INTRODUCTION
Plaintiff XXX(“Plaintiff”) action is based on the stated forgery action, Plaintiff in here complaint states that defendant Craig Hammons (“Defendant” or “Hammons”) is the notary that verified the signatures of Roque Santi and XXXX(“pseudo named beneficiary”) on the Substitution of Trustee, recorded against the real property located at 41 Clubhouse Avenue Venice, CA 90291 (“Subject Property”), on May 27, 2016. Hammons is also an employee of ECC Capital where the beneficiary Santi held a position of an officer of the Company up until after this case was filed.
Plaintiff asserted that Mafalda Fontana’s (“Fontana”) signatures on the Notice of Default and Substitution of Trustee were “forged,” as the pseudo name appears to be intentionally hand written backward spelled and in the signature lines, Fontana’s signatures were forged on the recorded instruments in May of 2016, Plaintiff is left with three causes of action against Defendant: Negligent Misrepresentation, Fraud, and Unfair Business Practices.
- ARGUMENT
- Legal Standard for a Motion for Summary Judgment
Code of Civil Procedure section 437c, subdivision (c), provides: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Summary judgment is proper only when there is no issue of material fact to be tried. (Steingart v. White (1988) 198 Cal.App.3d 406, 411, 243 Cal.Rptr. 678.) “In order to prevent the imposition of a summary judgment, the disputed facts must be ‘material,’ i.e., relate to a claim or defense in issue which could make a difference in the outcome. [Citation.] We recognize that summary judgment procedures are viewed as ‘drastic’ [citations]; however, the purpose of a summary judgment ‘is to expedite litigation by avoiding needless trials’ [citation].” (Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 976-977, 243 Cal.Rptr. 277.) ” ‘ “The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.” … [Citation.]’ ” (Steingart v. White, supra, 198 Cal.App.3d 406, 411, 243 Cal.Rptr. 678.) The declarations of the moving party are strictly construed and those of the nonmoving party liberally construed, ” ‘and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.’ ” (Sheffield v. Eli Lilly & Co. (1983) 144 Cal.App.3d 583, 611, 192 Cal.Rptr. 870; Becker v. IRM Corp. (1985) 38 Cal.3d 454, 458, 213 Cal.Rptr. 213.
- PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT AGAINST THE DEFENDANT AS A MATTER OF LAW;
The claims at issue are breach of negligent misrepresentation, Fraud and Unfair Business Practices. The elements of negligent misrepresentation are “(1) misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the misrepresentation, (4) ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed, and (5) resulting damage.” Lincoln Alameda Creek v. Cooper Indus., Inc., 829 F. Supp. 325, 330 (N.D. Cal. 1992). “The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” Charnay v. Colbert, 145 Cal. App. 4th 170, 184-85 (2006) (citing Bily v. Arthur Young & Co., 3 Cal. 4th 370, 407-08 (1992)); see also Alliance Mortg. Co. v. Rothwell, 10 Cal. 4th 1226, 1239 fn. 4 (1995) (negligent misrepresentation is a species of the tort of deceit and, like fraud, requires a misrepresentation, justifiable reliance and damage).
Whether the plaintiff has successfully pled a claim for negligent misrepresentation against defendant is not the issue here. The issue here is whether the claim brought against the defendant is statue barred.
Generally speaking, a cause of action accrues at ‘ the time when the cause of action is complete with all of its elements.’ “ Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 806, 27 Cal.Rptr.3d 661, 110 P.3d 914 (2005). There is, of course, an exception to this general rule. Under the ” discovery rule,” accrual of a cause of action is postponed ” until the plaintiff discovers, or has reason to discover, the cause of action. [¶ ] A plaintiff has reason to discover a cause of action when he or she ‘ has reason at least to suspect a factual basis for its elements.’ ” Id. at 807, 27 Cal.Rptr.3d 661, 110 P.3d 914. The California Supreme Court has explained that,
[i]n so using the term ” elements,” we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.
Plaintiff did not discover the fraudulent recorded Substitution of Trustee Instrument until year end of 2019 after santi and malfada brought their unlawful detainer action and it reflected a pseudo name on the complaint filed by a counsel that represented them in the bankruptcy court and never used the psuedo name Malfada in any of his bankruptcy moving papers. On November 2019 Western Progressive, LLC did a Notice of Trustee Sale and Plaintiff had to start to look into the title records, and only then did the Plaintiff discover the fraudulent invalid notarized instrument by Hanmons that was never sent to her before showing the forged signatures and what seemed to be an intentional backward spelling of the Malfada name.
Plaintiff’s eighth Claim is for violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. This statutory scheme prohibits any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [Cal. Bus. & Prof. Code §§ 17500 et seq.].” Cal. Bus. & Prof. Code § 17200. “By proscribing ‘any unlawful’ business practices, section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180 (1999) (internal quotations and citations omitted). The “unlawful” prong of the UCL, thus, effectively turns a violation of the underlying law into a per se violation of the UCL. See Kasky v. Nike, Inc., 27 Cal.4th 939, 950 (2002); Cel-Tech Communications, 20 Cal.4th at 180.
In this case Plaintiff has successfully pled that Defendant is “competing unfairly by knowingly filing and recording fraudulent documents to Plaintiff and members of the public. Here, facts are alleged to support the notion that members of the public are (or were) likely to be deceived by Hammons’ alleged notarization of the Notice of Default and Substitution of Trustee. Indeed, the public was deceived by the fraudulent instrument.
California’s UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. “By proscribing ‘any unlawful’ business practice, ‘section 17200 “borrows” violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 180 (1999). Virtually any law—federal, state or local—can serve as a predicate for an action under the unlawful prong of the UCL. Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1361 (2010). In order to assert a claim under the UCL, a person must have “suffered injury in fact and . . . lost money or property as a result of such unfair competition.” Cal. Bus. & Prof. Code § 17204. The California Supreme Court has held that the phrase “as a result of” in section 17204 “imposes an actual reliance requirement on plaintiffs prosecuting a private enforcement action under the UCL’s fraud prong.” In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009). In Tobacco II, the California Supreme Court emphasized that its “discussion of causation in this case is limited to such cases where, as here, a UCL action is based on a fraud theory involving false advertising and misrepresentations to consumers.
In this instant case, Plaintiff has lost her property as a result of Defendant’s unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.
It is also apparent that facts essential to justify the motion for summary judgment are available to plaintiff and her witness, and, indeed, are likely to be exclusively within the knowledge of everyone, a factor which renders summary judgment relief particularly appropriate.
- PLAINTIFF HAS SUBMITTED ADMISSIBLE EVIDENCE TO SUPPORT ITS MOTION.
It is well-settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such a showing requires denial of the motion.
Here, Plaintiff prima facie case rest on important admissible evidence attached herein and the Declaration of __________(which are authenticated and admissible). The important admissible evidence attached herein includes but not limited to;
- Documents showing Plaintiff owned the subject property. Exhibit 1a.
- Documents showing Defendant forged, notarized, and recorded the Underlying Documents with the onset of DOT Substitution of Trustee naming New Trustee SDS. Exhibits E
- recorded foreclosing notices leading to NTS (Exhibits F, G”.)
- Therefore, ___________ Declaration constitutes evidence that can be considered on a motion for summary judgment. Because of its reliance on admissible evidence, Plaintiff has established a prima facie showing and its motion for summary judgment should be granted.
- PLAINTIFF’S CLAIMS ARE NOT BARRED BY THE STATUTE OF LIMITATIONS
A claim that a cause of action is barred by the statute of limitations is an affirmative defense. See Aerojet Gen. Corp. v. Superior Court, 177 Cal.App.3d 950, 953, 223 Cal.Rptr. 249 (1986) (stating that ” [t]he statute of limitations is an affirmative defense” ); see also Wyatt v. Terhune, 315 F.3d 1108, 1117-18 (9th Cir.2003) (noting that ” it is well-settled that statutes of limitations are affirmative defenses, not pleading requirements.” ). As noted above, a defendant moving for motion for judgment on the pleadings based on an affirmative defense ” must establish beyond peradventure all of the essential elements of the … defense to warrant judgment in [its]
Under California law, a fraud claim is subject to a three-year statute of limitations. See Cal. Code Civ. Proc. § 338(d). This limitations period is subject to the discovery rule, meaning ” [a]n action for relief on the ground of fraud . . . is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud[.]” Id. ” A plaintiff invoking the discovery rule defense must establish facts showing that he was not negligent in failing to make the discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry.” Galen v. Mobil Oil Corp., 922 F.Supp. 318, 322 (C.D. Cal. 1996) (internal quotation marks omitted). In other words, if ” the alleged fraud occurred more than three years ago, Plaintiff bears the burden to show that [he] was not put on inquiry by any circumstances known to [him] or [his] agents at any time prior to the commencement of the three-year period preceding this lawsuit. Sec. Serv. Fed. Credit Union v. First Am. Title Co., 2012 WL 5954815, *14 (C.D. Cal. 2012)
In this present case, Plaintiff’s fraud claim against the defendant is not statute barred because Plaintiff find out about the substitution of trustee instrument recorded until end of year of 2019 when a UD complaint (that was dismissed – due to unperfected title) showing a pseudo name and received a notice Notice of Trustee Sale from Western Progressive in November of 2019 for the same property 41 clubhouse Ave, Venice CA 90291. Additionally, Plaintiff was never mailed the Substitution of Trustee instrument by Special Default Services, Inc (‘SD”) I and it was discovered year end 2019 when Plaintiff noticed inconsistencies in the named plaintiff in UD complaint and when she received the Notice of Trustee Sale form another entity after the wrongful foreclosure conducted by SDS had already taken place 5 months prior.
Plaintiff claims are not statute barred pursuant to her bankruptcy filing on 01/02/2018
(see exhibit A). Section 108 of the Bankruptcy Code, is just such a tolling provision. In relevant part, it provides as follows:
(a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of–
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) two years after the order for relief.
- 108(a), Bankruptcy Code. Section 108(a) protects the bankruptcy estate by providing the trustee at least two years in which to bring any cause of action belonging to the debtor as long as the limitation period had not already run on the date of the order for relief, which in a voluntary bankruptcy case is the date the petition is filed. § 301(b), Bankruptcy Code. The Plaintiff in this case filed her bankruptcy filing on 01/02/2018 and the limitation period had not already run on the date of the order for relief, which in a voluntary bankruptcy case is the date the petition is filed.
A proceeding “arises under” the Bankruptcy Code if federal bankruptcy law creates the cause of action or if the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal bankruptcy law. Poplar Run Five Ltd. P’ship v. Virginia Elec. & Power Co. (In re Poplar Run Five Ltd. P’ship), 192 B.R. 848, 855 (Bankr.E.D.Va.1995).
Therefore, Plaintiff’s Claims are not statute barred as she can take advantage of the two-year extension provided by Section 108 of the Bankruptcy Code.
- DEFENDANT IS LIABLE FOR FRAUD
Defendant defrauded Plaintiff in that Defendant forged, notarized, and recorded the Underlying Documents with the onset of DOT Substitution of Trustee naming New Trustee SDS (Exhibit E) and through recorded foreclosing notices leading to NTS (Exhibits F, G), and subsequently with knowledge of the fraud, foreclosed on the Subject Property based on Plaintiff’s alleged non-payment of a loan with yet another fraudulent recording of Trustee’s Deed Upon Sale (Exhibit H.). In California, any document with a forged signature is void from the time it is signed. Further, recording any fraudulent or forged document is a felony. Forged documents have been held to be unable to be the foundation for good title. (Trout v. Trout (1934) 220 Cal. 652 at 656.) Further the courts have power to vacate a foreclosure sale where there is evidence of fraud. (Angels v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279 at 1286.). Plaintiff alleges that the Underlying Documents were either forged or fraudulently signed by Defendants.
Plaintiff alleges the Underlying Documents were wrongfully forged and recorded by Defendant SDS and therefore is invalid as to the effectiveness in substituting SDS as Trustee of the Subject Property. Plaintiff is informed and believes that Defendant Notary was responsible for failing to authenticate the accuracy of the signatures on the Underlying Documents, verifying identity and or fraudulently authenticating Defendant Beneficiaries that were not present at time of signing.
- IN THE ALTERNATIVE, IF THE COURT DECLINES TO ENTER SUMMARY JUDGMENT AT THIS TIME, PLAINTIFF REQUESTS SUMMARY ADJUDICATION.
Code of Civil Procedure § 437c(f)(1) provides that a party may move for summary adjudication as to the merits of a cause of action or affirmative defense, or because a party owed a duty to the plaintiff. A motion for summary adjudication may be brought concurrently with, or in the alternative to, a motion for summary judgment, and may rely on the same evidence. Cal. Rules of Court Rule 3.1350(b). In this case, if for any reason summary judgment is not granted at this time, plaintiff requests that the court enter an order adjudicating the merits of the causes of action, and making findings on the issues.
CONCLUSION
Plaintiff hereby respectfully requests, based on the above Memorandum of Law, the attached evidence, and the entire record, prays this Honorable Court to grant her summary judgment or alternatively summary adjudication.
Dated; January_____, XXX
Respectively Submitted by;
_____________
XXX
41 Clubhouse Avenue
XXX
Telephone: (XXX
Plaintiff in Pro Per.
CERTIFICATE OF SERVICE
This statement is to certify that, December _______ 2020, a copy of the foregoing has been e-mailed to all parties who have agreed to accept service electronically:
SERVICE LIST
XXX
Attorneys for Defendant XXX
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