7/31/2019 Rich Rydstrom Attorney OPPO STRIKE ROOP Federal June 2012 http://slidepdf.com/reader/full/rich-rydstrom-attorney-oppo-strike-roop-federal-june-2012 1/24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28i PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE – EDCV12-00640-CJC (FFMx) RICHARD IVAR RYDSTROM, ESQ. CSBN: 147470 [email protected]RYDSTROM LAW OFFICE 4695 MacArthur Court 11th Floor Newport Beach, Ca 92660 949.678.2218 (Tel) | 949.606.9716 (Fax) www.RydstromLaw.Com Attorney for Plaintiff OPHELIA GEORGIEV ROOP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OPHELIA GEORGIEV ROOP Plaintiff, vs. CITIMORTGAGE INC., KAISER FEDERAL BANK; CITI RESIDENTIAL LENDING INC.; CR TITLE SERVICE, INC. Does 1 to 100, Inclusive Defendants. Case NO.: EDCV12-006 0 CJC (FFMx) PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S CITIMORTGAGE, INC., CR TITLE SERVICES, INC., AND CITI RESIDENTIAL LENDING, INC.’SNOTICE OF MOTION AND MOTION TO STRIKE Date: July 9, 2012 Time: 1:30 p.m. Courtroom: 9B Judge: Hon. Cormac J. Carney FAC Filed: March 23, 2012 ALL PARTIES AND THEIR ATTORNEYS TAKE NOTICE: Case 5:12-cv-00640-CJC-FFM Document 21 Filed 06/08/12 Page 1 of 24 Page ID #:853
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Rich Rydstrom Attorney OPPO STRIKE ROOP Federal June 2012
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7/31/2019 Rich Rydstrom Attorney OPPO STRIKE ROOP Federal June 2012
RYDSTROM LAW OFFICE4695 MacArthur Court 11th Floor
Newport Beach, Ca 92660949.678.2218 (Tel) | 949.606.9716 (Fax)www.RydstromLaw.Com
Attorney for Plaintiff OPHELIA GEORGIEV ROOP
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
OPHELIA GEORGIEV ROOP
Plaintiff,
vs.
CITIMORTGAGE INC., KAISER
FEDERAL BANK; CITIRESIDENTIAL LENDING INC.;CR TITLE SERVICE, INC.
Does 1 to 100, InclusiveDefendants.
Case NO.: EDCV12-006 0 CJC(FFMx)
PLAINTIFFS MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TO DEFENDANT’SCITIMORTGAGE, INC., CR TITLESERVICES, INC., AND CITIRESIDENTIAL LENDING, INC.’S NOTICE OF MOTION ANDMOTION TO STRIKE
Date: July 9, 2012Time: 1:30 p.m.Courtroom: 9BJudge: Hon. Cormac J.Carney
FAC Filed: March 23, 2012
ALL PARTIES AND THEIR ATTORNEYS TAKE NOTICE:
Case 5:12-cv-00640-CJC-FFM Document 21 Filed 06/08/12 Page 1 of 24 Page ID #:853
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a. Defendant’s Motion to Strike is in Violation of FRCP 12(f) as it isUntimely……………………………………………………………..2
b. Plaintiff’s FAC Does Contain Specific Factual Allegations of MaliceAs Conceded to by Defendants in its Speaking Motion …………....3
c. Plaintiff is entitled to Recover Punitive Damages Where Fraud isProven at Trial ………………………………………………………..4
d. Plaintiff’s Complaint Does Contain Specific Factual Allegations of Tortious Breach by Common Plan & Scheme to Defraud, and Aiding& Abetting by Defendants …………………………………………...9
e. Plaintiff Is Entitled to Attorney’s Fees and Treble Damages &Expressly so in Connection With the UCL Claim ….……………..10
f. Plaintiff Is Entitled to Emotional Distress Damages.……………….13
g. Plaintiff Can Add a New Cause of Action When (1) the Claims RelateBack to the Original Complaint; and (2) the New Cause of Action isWithin the Scope of the Order Granting Leave to Amend………….13
III. CONCLUSION…………………………………………………………….17
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE – EDCV12-00640-CJC (FFMx)
Guar. Corp. (1963) 59 Cal.2d 618, 619-621). Plaintiff is also entitled to
emotional distress damages for “all highly unpleasant mental reactions, such
as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, worry and nausea.” (Slaughter v Legal Process 162 CA 3d
1236, 1252). Finally, Plaintiff can add new causes of action to its First
Amended Complaint (“FAC”) because the claims relate back to the pro per’s
original complaint, and the new causes of action are within the scope of the
order granting leave to amend.
II. ARGUMENT
a. Defendant’s Motion to Strike is in Violation of FRCP 12(f)
as it is Untimely:
Defendant’s motion to strike should be overruled because Defendants
waived their right to file a Motion to Strike, because it is untimely, and in
violation of FRCP 12(f); which states the following:
(f) MOTION TO STRIKE. The court may strike from a pleading aninsufficient defense or any redundant, immaterial, impertinent,or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding tothe pleading or, if a response is not allowed, within 21 daysafter being served with the pleading.
Defendants admit in its Notice of Removal (pg. 2, ¶ 2) that
Defendants were served with Plaintiff’s First Amended Complaint (“FAC”)
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issues of fact for a jury.
c. Plaintiff is entitled to Recover Punitive Damages Where
Fraud is Proven at Trial: Intentional concealment of material fact provides an evidentiary basis
upon which punitive damages may be awarded. CAL. CIV. CODE
§3294(b)(3). Defendants acted with fraud, and thus, punitive damages may
be recovered where fraud is proven by “clear and convincing” evidence
(CAL. CIV. CODE §3294(a)). Punitive damages are not limited to affirmative
misrepresentations. Each and all of Defendants' conduct is alleged as
malicious, reckless, and proximately caused the emotional and physical
injuries and damages of Plaintiff as Plaintiff has alleged that each and all
acted in a common plan and scheme to defraud Plaintiff (FAC page 3, para.
5; page 11, para 40; page 22, para 62; plus at:
Cause #1 pg 24 Para 70, 71, 72, 109, 110; Cause #5 at Para 146,149, 150; Cause #6 at Para 154, 155, 158, 159; Cause #10 Para208; Cause #12 at Para 223; Cause #13 Para 229; Cause #15Para 250; Cause #17 Para 267.
Plaintiff’s complaint alleges that she was defrauded beginning on or
about March 2009 when she applied for a HAMP loan modification (FAC,
pg. 4, ¶ 9). The FAC includes allegations of many specific incidents of
promises made by named employees (including but not limited to (1) Patti
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE – EDCV12-00640-CJC (FFMx)
sent to her (FAC, pg. 6, ¶ 18). All these representations were false, and the
FAC alleges that Defendants did not intend to perform at the time the
representations were made (FAC, pg. 35, ¶ 113). The FAC also includes
allegations of when such misrepresentations were made, including but not
limited to on or about 04/2009, 07/2009, 09/2009 (FAC, pg. 5, ¶ 12; pg. 6. ¶
16, 18). The verbal misrepresentations made to Plaintiff were made
knowingly with the intent to defraud because Defendant knew or should
have known that Defendant’s investor, Kaiser Federal Bank, did not
participate in HAMP under its Pooling & Servicing Agreements (“SPA”).
(FAC, pg. 2, ¶ 2).
1.3 Investor Solicitation
Within 90 days of executing a SPA, the servicer must review allservicing agreements to determine investor participation in HAMP….(Emphasis Added) [Chapter I: MHA Handbook v3.3 18]
Moreover, Plaintiff alleges that she was deliberately misled into
believing that Defendant CitiMortgage would permanently modify her
mortgage, but refused to honor its promises. (FAC, pg. 35, ¶ 113).
Additionally, justifiable reliance exists when it was “reasonable for plaintiff
to accept defendant’s statements without an independent inquiry or
investigation.” Wigod v. Wells Fargo Bank , 7th Circuit; 2012 WL 727646,
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE – EDCV12-00640-CJC (FFMx)
No. 11-1423; Mar. 7 2012, at *13[26][27] (“Wigod 2012”); citing InQuote
Corp v. Cole, No. 99-cv-6232, 2000 WL 1222211, at 3 (N.D. Ill. Aug. 24,
2000). Here, Plaintiff alleged reliance when it was reasonable for Plaintiff
to accept Defendant’s statements that it would send her the promised
permanent modification. (FAC pg. 30-31, ¶¶ 89-91). Moreover, had
Plaintiff known of these false promises, Plaintiff would have behaved
differently (i.e. take the path of efficient breach and default immediately
rather than executing the Trial Period Plans and making trial payments;
obtaining a co-signer, a takeout refinance loan, a partial claim, or an
immediate foreclosure or short sale, which would have enabled Plaintiff to
preserve her cash and seek less expensive living arrangements).1
Defendant
1 Reliance can be proved in a fraudulent omission case by establishing that “had theomitted information been disclosed, [the plaintiff] would have been aware of it and behaved differently.” ( Boschma v. Home Loan Center , Inc., 198 Cal.App. 4th 230, 250;citing Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23 Cal. Rptr. 2d 101, 858 P.2d568]). "A person who, through the tort of another, has been required to act in the protection of his interest by bringing or defending an action against a third party, isentitled to recover compensation for loss of time, attorney's fees, and other expendituresthereby suffered or incurred." ( Prentice v. North Amer. Title Guar. Corp. (1963) 59Cal.2d 618, 619-621). "[T]he determination whether such damages should be awarded,and if so, the amount, is the exclusive function of the trial jury." ( Ferraro v. Pacific Fin.
Corp. (1970) 8 Cal.App.3d 339, 351. "Non-intentional conduct comes within thedefinition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result." ( Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d374.
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CitiMortgage acted with the intent to induce Plaintiff’s reliance when
CitiMortgage knew the statements to be false, and made these false
representations to deceive Plaintiff and induce Plaintiff to become
delinquent in her payments. For these reasons, Plaintiff’s allegations plead
facts sufficient to show that the Defendants acted with oppression, fraud, or
malice pursuant to Code of Civil Procedure §3294, and therefore Plaintiff’s
allegations support a request for punitive damages.
d. Plaintiff’s Complaint Does Contain Specific FactualAllegations of Tortious Breach by Common Plan & Scheme
to Defraud, and Aiding & Abetting by Defendants: The most widely recognized exception to the general rule that
punitive damages for breach of contract is unavailable:
“is when the defendant's conduct constitutes a tort as well as a breach of the contract. For example, when one party commits afraud during the...performance, the injured party may recover in
contract and tort.” Harris v. Atlantic Richfield Co., 14 Cal. App.4th 70, 78 (Cal. App. 5th Dist. 1993).
The gravamen of Plaintiff’s FAC is tortious. Defendants acted in a
common plan and scheme to defraud Plaintiff by Defendants (FAC page 2,
¶2), and committed fraud to breach the TPP contract. Moreover, Defendants
“knew of each others’ fraudulent acts, and provided “substantial assistance”
to achieve the desired unlawful result,” thereby aiding and abetting the
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common plan and scheme to defraud (FAC page 11, ¶ 41). For these
reasons, punitive damages are available to Plaintiff as the gravamen of
Plaintiff’s claims are based in fraud.
e. Plaintiff Is Entitled to Attorney’s Fees and Treble Damages
and Expressly so in Connection With the UCL Claim: Plaintiff is entitled to attorney’s fees and treble damages in her cause
of action for violation of the UCL. Pursuant to CA CC §1780(e) and B&P
§17082, Plaintiff shall be awarded a reasonable attorney’s fee together with
the costs of suit.
“The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section.”(CC §1780(e))
“In any action under this chapter, it is not necessary to allege or prove actual damages or the threat thereof, or actual injury or the threat thereof, to the plaintiff. But, in addition to injunctiverelief, any plaintiff in any such action shall be entitled to
recover three times the amount of the actual damages, if any,sustained by the plaintiff, as well as three times the actualdamages, if any, sustained by any person who has assigned tothe plaintiff his claim for damages resulting from a violation of this chapter. In any action under this chapter in which
judgment is entered against the defendant the plaintiff shall beawarded a reasonable attorney's fee together with the costs of suit..” ( B&P § 17082)
Moreover, pursuant to Hadley v. Baxendale, Plaintiff is entitled
damages that are “naturally flowing” from Defendant’s breach of contract,
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE – EDCV12-00640-CJC (FFMx)
“[n]otwithstanding any other provision of this title, every debt
collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j,
inclusive, of, and shall be subject to the remedies in Section
1692k of, Title 15 of the United States Code.” See CA CivilCode § 1788.17; see also Ortega v. HomEq Servicing , No. CV09-02130, 2010 WL 383368 at *5 (C.D. California, Jan. 25,2010). [Emphasis Added]
Section 1692k “ borrows” remedies from the FDCPA and expressly
incorporates them into the state statutory Rosenthal cause of action, allowing
Plaintiff to seek: “…any actual damage…” (FDCPA §813(a)(1)); “…in the
case of any action by an individual, such additional damages as the court
may allow, but not exceeding $1,000…” (FDCPA §813(a)(2)(A)); and
“…the costs of the action, together with a reasonable attorney’s fee as
determined by the court…” (emphasis added) (FDCPA §813(a)(3)).
Moreover, "[a] person who, through the tort of another has been required to
act in the protection of his interest by bringing or defending an action against
a third party, is entitled to recover compensation for loss of time, attorney's
fees, and other expenditures thereby suffered or incurred." (Emphasis
Added) ( Prentice, 59 Cal.2d at 619-621). "[T]he determination of whether
such damages should be awarded, and if so, the amount, is the exclusive
function of the trial jury." ( Ferraro 8 Cal.App.3d at 351. Defendants'
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I am employed in the County of ORANGE, State of California. I am over the age of 18 and am
not a party to the within action. On june 7 2012 I served the document described as PLAINTIFFS
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S
CITIMORTGAGE, INC., CR TITLE SERVICES, INC., AND CITI RESIDENTIAL LENDING,
INC.’S NOTICE OF MOTION AND MOTION TO STRIKE on each interested party, as follows: ERIC EVERETT HAWES KELLY ANDREW BEALLState Bar No. 135514 State Bar No. 162456PEREZ & HAWES LLP DAMIAN P. RICHARD21300 Victory Boulevard State Bar No. 262805Suite 820 WOLFE & WYMAN LLPWoodland Hills, CA 91367 2301 Dupont Drive, Suite 300(818) 884-3991 – Phone Irvine, CA 92612-7531
(949-)475-9200
[X] BY MAIL: as follows:
[X] FEDERAL – I deposited such envelope in the U.S. Mail at Orange County California, with
postage thereon fully prepaid. I am readily familiar with the firm’s practice for collection and
processing of correspondence for mailing with the United States Postal Service. I am aware that
on motion of the party served, service is presumed invalid if postal cancellation date or postagemeter sate is more than one day after the date of deposit for mailing in affidavit.
[X] BY ELECTRONIC ACCESS: Purusant to Electronic Filing Court Order, I hereby certify that
the above document(s) was uploaded to the Roop v. CitiMortgage, Inc., et al. website and will be
posted on the website by the close of the next business day and the webmaster will give e-mail
notification to all parties.
[ ] BY CERTIFIED MAIL as follows: I am “readily familiar” with Rydstrom Law’s practice for the
collection and processing of correspondence for mailing with the United States Postal Service;
such envelope will be deposited with the United States Postal Service on the above date in the
ordinary course of business at the business address shown above; and such envelope was placed
for collection and mailing, by Certified United States Mail, Return Receipt Requested, on the
above date according to Rydstrom Law’s ordinary business practice.
[ ] BY PERSONAL SERVICE as follows: I caused a copy of such document(s) to be delivered by
hand to the offices of the addressee between the hours of 9:00 A.M. and 5:00 P.M.[ ] BY OVERNIGHT COURIER SERVICE as follows: I caused such envelope to be delivered by
overnight courier service to the offices of the addressee. The envelope was deposited in or with a
facility regularly maintained by the overnight courier service with delivery fees paid or provided
for.
[ ] BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number
of the addressee listed above, by use of facsimile machine telephone number. The facsimile
machine used compiled with California Rules of Court, Rule 2004 and no error was reported by
the machine. Pursuant to California Rules of Court, Rule 2006(d), a transmission record of the
transmission was printed.
Executed on date first referenced above, at Orange / Los Angeles County, California.[ ] STATE: I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct.
[X] FEDERAL: I declare that I am employed in the offices of a member of the State Bar of this Courtat whose direction the service was made.