Response to Defendants Demurrer- California (1)

February 6, 2023
  1. TEENA COLEBROOK

3940 South Broad Street, Suite 7258

San Luis Obispo, CA 93401

Phone: (310) 420-0508

Plaintiff in Pro Per

 

Attorneys for Defendants

TIMOTHY B. McGINITY and ALLEN MATKINS LECK

GAMBLE MALLORY & NATSIS LLP

 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO 

MS. TEENA COLEBROOK,

                                 Plaintiff,

     Vs.
TIMOTHY B. McGINITY and LAW FIRM OF ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP,

                               Defendants.

Case No.: 21CV-0123


PLAINTIFF’S RESPONSE TO DEFENDANT’S DEMURRER AND ANTI SLAPP

Judge Tana L. Coates

Department 9

 

Plaintiff, MS. TEENA COLEBROOK, hereby files this Response to Defendant’s Demurrer and Anti SLAPP and alleges as follows:

 

PROCEDURAL BACKGROUND

Plaintiff filed a complaint against Defendants on or about February 12, 2021. Defendants, through their attorney, responded to Plaintiff’s complaint by sending a meet and confer letter to Plaintiff stating the grounds for Defendant’s Demurrer and Motion to Strike. On or about May 11, 2021, Defendants filed their Demurrer and Motion to Strike. 

FACTUAL BACKGROUND

On or about October 31, 2016, Plaintiff’s former attorney, Robert Hanna, sent a letter to Defendant McGinity requesting the original note and allonges be returned to Plaintiff as the loan had been satisfied. 

On or about December 26, 2016, Defendant McGinity sent a response letter to Hanna on page 2 paragraph 2 alleging that: “With regard to the original Note, CIT will provide you with the original Note indicating that Ms. Colebrook’s obligation under the Note has been satisfied.”

On or about January 13, 2017, Defendant McGinity sent Hanna a letter containing the following statements on page 4 paragraph C: “… The result is that the Torrance action is not final. Accordingly, CIT will not be returning the original Note or Allonges to Colebrook until the Judgment in the Torrance Action has become final. “CIT will return the original Note and Allonges to you once the Torrance action has concluded.”     

Plaintiff had a Good Faith Reliance upon those written promises. In as much as Plaintiff was dealing with a licensed attorney, apparently in good standing with the California State Bar Association. Plaintiff had reason to trust the written promise made by Defendant McGinity, a licensed attorney and counsel for CIT Bank. Plaintiff did depend on the promise made by Defendant McGinity and refrained from pursuing the issue further in the litigation that was ongoing at the time because she was ignorant of the falsity of the written promise. 

Defendant McGinity made these written promises with the specific intent that Plaintiff would rely upon them in the manner reasonably contemplated by the said Defendant. Plaintiff was ignorant of the truth of the said Defendant’s false representation to her. Notably, Plaintiff had a right to rely upon the representations made to her by a licensed attorney, which caused the injury. Therefore, Plaintiff brings her claims that Defendant’s action was fraudulent. Defendant’s conduct was contrary to the “practice of law”. Instead, it was the “practice of fraud”.  Experts would say that the conduct involved both civil and criminal violations. There is nothing more basic to our nation of laws and our legal system, than telling the truth

Defendant McGinity has since steadfastly refused to produce the original Note and Allonges as he promised both on or about December 21st, 2016, and again on or about January 13th, 2017. Because Defendant McGinity’s refusal to honor his written promises to produce the original documents, Plaintiff has a reasonable presumption that Defendant McGinity’s client CIT was never the proper holder of the Note and Allonges and lied to Plaintiff in a written promise to produce the documents and lied to the court when claiming standing to prosecute the foreclosure against Plaintiff’s home. 

Defendant McGinity has in the past failed to speak with candor to the court by not only making false allegations about Plaintiff but also false statements and misrepresentation of facts in court with the deliberate intent to mislead the honorable judges. Plaintiff believes this to be a pattern of behavior that violates the Attorney business and professional rules of conduct, issues that go to the integrity of the legal system. 

LEGAL STANDARDS

In reviewing the sufficiency of a complaint against a demurrer, the court must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Blank v.

Kirwan (1985) 39 Cal.3d 311, 318.) It must also accept as true all material facts properly pleaded {id.), and any facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

The defendant must show that the challenged causes of action are defective on their face. (Code Civ. Proc., § 430.30(a).) A demurrer tests the legal, not factual, sufficiency of a complaint.

If a complaint contains allegations of the facts essential to state a cause of action, regardless of mistaken theory or imperfections of form, the court must overrule the demurrer. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870.) Likewise, the court must overrule the demurrer when the plaintiff has stated a cause of action under any possible legal theory. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) “It is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” Ibid.

LEGAL ARGUMENT

  1. THE COMPLAINT CONTAINS FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION

The allegations of a complaint must be liberally construed with a view to attaining substantial justice among the parties. Code Civ. Proc. § 452. Even as against a demurrer, a Plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint Defendant with the nature, source, and extent of his cause of action. Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 206, 209 [331 P.2d 645].

If there is any reasonable possibility that the Plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542 [343 P.2d 36]; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664 [297 P.2d 638].

An attorney “has a duty to employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Also, attorneys have a duty to “counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.” Business and Professions Code, § 6068(d) and (c).  

Plaintiff has set out her case with sufficient facts to allege Defendants’ blameworthiness. Defendant McGinity, an attorney supposedly in good standing, deliberately lied in order to deceive Plaintiff. Vide a letter dated December 26, 2016, Defendant McGinity stated thus: “With regard to the original Note, CIT will provide you with the original Note indicating that Ms. Colebrook’s obligation under the Note has been satisfied.” The said Defendant made this statement knowing that he had no intention to fulfill it. 

Defendant’s conduct was fraudulent. 

What is FRAUD?

Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. Maher v. Hibernia Ins. Co.,67 N. Y. 292; Alexander v. Church, 53 Conn. 501, 4 Atl. 103; Studer v. Bleistein. 115 N.Y. 31G, 22 X. E. 243, 7 L. R. A. 702; Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447,32 L. Ed. 878; Fechheimer v. Baum (C. C.) 37 Fed. 167; U. S. v. Beach (D. C.) 71 Fed.160; Gardner v. Ileartt, 3 Denio (N. Y.) 232; Monroe Mercantile Co. v. Arnold, 108 Ga. 449, 34 S. E. 176.

As evidenced by the admission of fraud in Matthew Marino’s letter of April 19th, 2021 page 2, whereby he states that “neither Allen Matkins nor our client had returned, or intended to return,, the note to you” and again on the same page. “CIT Bank had no intention of returning the note to you at the time those statements were made” This fits the very definition of Fraud. While Plaintiff is flattered that Mr. Marino appears to believe that Plaintiff has psychic magical powers. Plaintiff categorically states that he is not and has never have been able to read minds. It follows; Plaintiff could not have known that the Defendants had no intention of returning the original note and allonges to him. If indeed Plaintiff had those psychic powers, Plaintiff would never have been induced and deceived into believing anything that One West Bank has said from the very start of their intent to deceive and steal.  

Also, according to CA Evidence code 623, Counsel is collaterally estopped under the rules of evidence from contradicting it.  CA 623 states in that regard that “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.”

Furthermore, what is frivolous is Defendant McGinity’s refusal to accept responsibility for outrightly making the lies with intent to deceive. In one of the responses to the instant action, the said Defendant still has the audacity to lie further when he states, “… I do not specifically recall making such statements….” Such conduct just shows the determined impunity of the Defendant. Defendant’s conduct was also in breach of the Business and Professions Code, § 6068(d) and (c, as stated hereinabove. 

In light of the foregoing, it is evident that the Defendant’s claim is frivolous. According to the Cornell Law School definition, a frivolous claim, often called a bad faith claim, refers to a lawsuit, motion or appeal that is intended to harass, delay, or embarrass the opposition. Also, a claim is frivolous when the claim lacks any arguable basis either in law or in fact Neitze v. Williams, 490 U.S. 319, 325 (1989). That means, in a frivolous claim, either: “(1) factual contentions are clearly baseless such as when allegations are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory. Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

Accordingly, Plaintiff’s claims against the said Defendant are valid and are brought in good faith, with an aim of seeking redress for Defendant’s conduct. 

  1. PLAINTIFF HAS RIGHT AND STANDING, UNDER COMMON LAW, TO CLAIM THE ORIGINAL NOTE AND ALLONGES 

Under the common law doctrine of promissory estoppel, a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement. See Rest., Contracts § 90; 1 Witkin, Summary of Cal. Law (7th ed. 1960) § 85, p. 90.

The purpose of the promissory estoppel doctrine is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. This doctrine rests on the theory that the party to be estopped may not prove certain facts if he has by his conduct or declarations misled another to his prejudice. Scott v. Federal Life Insurance Co. (1962) 200 Cal.App.2d 384, 391 [19 Cal.Rptr.258]; General Motors Accept. Corp. v. Gilbert (1961) 196 Cal.App.2d 732, 742 [17 Cal.Rptr. 35].

It follows; the only reliance which can make the promisor’s failure to perform actionable is the promisee’s doing what was requested. If that reliance was detrimental, it would constitute consideration. See Synder, More on Promissory Estoppel (1959) 26 Brooklyn L.Rev. 41. 

In the instant action, as already alleged hereinabove, Defendant McGinity made a promise to Plaintiff. Accordingly, Plaintiff innocently relied on the said promise oblivious of the Defendant’s intention not to follow through on their promises. It was only until late 2018 when Plaintiff realized what had just happened. Clearly, Plaintiff held on to Defendant’s promise for almost two years, which duration amounted to sufficient consideration since Plaintiff was delayed in seeking the documents in court. Accordingly, Defendant is liable under the doctrine of promissory estoppel for their failure to keep their promise. 

  1. PLAINTIFF’S CLAIM IS NOT RES JUDICATA

Res judicata as well as issue preclusion applies “when (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits”) (internal quotation marks omitted). See Rep. of Ecuador v. Chevron Corp., 638 F.3d 384, 400 (2d Cir. 2011).

Courts should refuse to apply res judicata when to do so would constitute a manifest injustice. Greenfield v. Mather (1948) 32 Cal.2d. 23, 35 [194 P.2d 1]; Jackson v. Jackson (1967) 253 Cal.App.2d. 1026, 1040 [62 Cal.Rptr. 121]; McGaffey v. Sudowitz (1961) 189 Cal.App.2d 215, 216-218 [10 Cal.Rptr. 862].

As the Supreme Court explained more than 50 years ago in Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955), res judicata does not bar a suit, even if it involves the same counts of wrongful conduct as alleged earlier, so long as the suit alleges new facts or a worsening of the earlier conditions.

Complaint is not barred by doctrine of res judicata since the issue in this action was not raised in the previous ones. The substance of the instant action is breach of a promise under the common law doctrine of estoppel. Such breach, as alleged in the Complaint, also amounts to the alleged causes of action, inter alia, fraud, and misrepresentation. Besides, this action involves a different party, it is not the same nucleus. It is therefore clear that the court would be committing an injustice against Plaintiff if it applies Defendant’s res judicata defense because Plaintiff would lack redress for the breach of promise claim. 

  1. PLAINTIFF’S CLAIM IS NOT TIME BARRED

To defeat a time barred defense, Plaintiff must show that she could not have reasonably discovered the error/falsity despite diligent inquiry. See, e.g., Nguyen v. W. Digital Corp. 2014) 229 Cal.App.4th 1522, 1553. This is Plaintiff’s burden. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797.

Plaintiff cannot be time barred because she would not have known that Defendant. McGinity was committing a deliberate act of fraud before the end of the case and the appeal process. It follows; Plaintiff did not know that the said Defendant would not follow through on their promises until late 2018 when after not receiving the documents, Plaintiff sent a certified letter to the CEO of CIT bank requesting same and that letter was ignored. Consequently, Plaintiff filed a declaratory judgment. Therefore, it was at that point that Plaintiff realized that Defendant McGinity had committed a deliberate act of fraud and deceit. Accordingly, Plaintiff avers that the time starts when the Plaintiff discovered the fraud.

 

  1. DEFENDANT’S ACTIONS ARE NOT PROTECTED BY LITIGATION PRIVILEGE

Litigation privilege applies to communication made in judicial and quasi-judicial proceedings, by litigants or other participants authorized by law, to achieve the objects of the litigation, and that have some connection or logical relation to the action. Rubin v. Green (1993) 4 Cal.4th 1187, 1193 [17 Cal.Rptr. 2d 828, 847 P.2d 1044]. 

Under Business and Profession Code § 6068(d), a lawyer has the duty “to employ, for the purposes of maintaining the causes confided to him or her such means only as are consistent with the truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”  Business & Professions Code § 6128 also provides in part that “Every attorney is guilty of a misdemeanor who … (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party….” ARTICLE 4. Admission to the Practice of Law [6060 – 6069.5]. ( Article 4 added by Stats. 1939, Ch. 34.)

Section 6068 provides in pertinent part that,

It is the duty of an attorney to do all of the following:

(a) To support the Constitution and laws of the United States and of this state.

(b) To maintain the respect due to the courts of justice and judicial officers. When they lie they are not maintaining respect for anyone

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. 

The New Rule 4.1 “Truthfulness in Statements to Others”. (See full rule attached).

When the new and revised Rules of Professional Conduct become effective on November 1, 2018, California will finally join the other 49 states which have already adopted some version of American Bar Association (ABA) Model Rule 4.1 “Truthfulness in Statements to Others.”  California’s Rule 4.1 provides:

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Business and Professions

Code §6068(e)(1) or rule 1.6.”

In the instant action, Defendant McGinity did not make the communication/promise to Plaintiff in order to achieve the objects of the litigation. Clearly, the Defendant and Plaintiff were from opposite sides in the case. Besides, had the promise been made to further the objects of the litigation, the documents would have already been delivered to Plaintiff. Therefore, at no time is it expected that Plaintiff’s objects of the case are the Defendant’s objects of the case. Otherwise, there would be no case at all. It follows; Defendant’s promise does not amount to a litigation privilege because it fails on the fact that it was not made to achieve the objects of the Defendant’s case.    

Defendant’s use of litigation privilege when claiming that they can lie and get away with the lie contradicts the Rules of professional conduct, and the rules for being allowed to practice law. If this honorable court allows this claim of privilege, then it is undermining the very essence of justice and the constitution of the United States.  

  1. DEFENDANT’S ANTI-SLAPP MOTION DOES NOT APPLY TO PLAINTIFF’S CASE

In evaluating an Anti-SLAPP motion, the trial court must first determine whether the Defendant has made a threshold showing that the challenged cause of action arises from protected activity. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685].

If the court finds that Defendant has made the threshold for an Anti-SLAP motion, it must determine whether the Plaintiff has demonstrated a probability of prevailing on the claim. Ibid., at p. 67. “In order to establish a probability of prevailing on the claim, a Plaintiff responding to an Anti-SLAPP motion must ‘state and substantiate a legally sufficient claim.’ Put another way, the 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.’” Wilson v. Parker, Covert Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d 733]. 

Plaintiff avers that the Anti-SLAPP motion does not apply to Plaintiff’s action. Anti-SLAPP would only apply if Plaintiff sought information made by the Defendant pertaining to their client, but not to a promise expressly made to Plaintiff. Applying Anti-SLAPP on this case would be a denial of justice because the ruling/judgment would bar the enforcement of promises made during the pendency of court cases and would prevent innocent individuals from claiming breach of promises so made. 

  In the event this honorable court applies the Anti-SLAPP motion against Plaintiff, the law allows for another avenue for settling the matter. Notably, the Court should find that Plaintiff has a probability of prevailing on the claim. Plaintiff hereby avers that the claim is legally sufficient. As already alleged herein above, the doctrine of promissory estoppel ensures that promises are binding. Defendant McGiity made a promise in writing that they would issue Plaintiff the requested documents. Plaintiff innocently relied on the promise for about two years, all to her detriment. Accordingly, Plaintiff made around three causes of action against Defendant in that regard. This, Plaintiff maintains, is a legally sufficient claim that warrants redress from this honorable court.  

  1. PLAINTIFF IS ENTITLED TO LEAVE TO AMEND COMPLAINT

If there is any reasonable possibility that the Plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542 [343 P.2d 36]; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664 [297 P.2d 638].

As already alleged above, Plaintiff’s claim states a good cause of action and has chances of success. Therefore, this honorable court should grant leave to amend where need be, for the interest of justice. 

  1. DEFENDANTS VIOLATED CALIFORNIA’S TENDER RULE

According to California Civil Code Section 2924c. CA Civ Code § 2924c (2017) (a) (1), a homeowner can challenge a foreclosure sale if they paid the full amount of the loan before it was due. 

In the instant action, the Defendants claimed that Plaintiff did not satisfy the note therefore he had no right to the documents. However, Plaintiff avers that under the Tender Rule, he had duly discharged the loan, and was entitled to the original documents so requested. 

CONCLUSION

In light of the foregoing, Plaintiff prays this honorable court to dismiss Defendant’s Demurrer and Motion to Strike, and that Plaintiff be awarded costs of the suit.

 

 

DATED: 

Respectfully submitted,

 

                                                                                                

                         Signature

____________________

 

  1. TEENA COLEBROOK

3940 South Broad Street, Suite 7258

San Luis Obispo, CA 93401

Phone: (310) 420-0508

In Pro Per

 

CERTIFICATE OF SERVICE

 

I hereby certify that on [ENTER DATE], copies of the foregoing Complaint has been sent to all the Defendants in the following address:

    

ALLEN MATKINS LECK GAMBLE

MALLORY & NATSIS LLP

JEFFREY R. PATTERSON (BAR NO. 126148)

MATTHEW J. MARINO (BAR NO. 214440)

One America Plaza

600 West Broadway, 27th Floor

San Diego, California 92101-0903

Phone: (619) 233-1155

Fax: (619) 233-1158

E-Mail: jpatterson@allenmatkins.com

mmarino@allenmatkins.com

   

                                  Signature

____________________

 

  1. TEENA COLEBROOK

3940 South Broad Street, Suite 7258

San Luis Obispo, CA 93401

Phone: (310) 420-0508

In Pro Per


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