Opinion
Salma Agha-Khan, M.D., an indvidual, Plaintiff, Pro se, Los Angeles, CA.
For Frederick Clement, an individual, and Judge of the United States Bankruptcy Court, United States of America, Defendants: John E Nordin, II, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Assistant Chief - Civil Division, Los Angeles, CA; Jonathan B Klinck, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA.
For Jeffrey Vetter, an individual, and Trustee of the United States Bankruptcy Court, Lisa Holder, an Indvidual, Klein, Denatale and Goldner, a professional law corporation, Defendants: David Jeremy Cooper, LEAD ATTORNEY, Klein DeNatale Goldner Cooper Rosenlieb & Kimball LLP, Bakersfield, CA; Connie M Parker, Klein DeNatale Goldner Cooper Rosenlieb & Kimball LLP, Fresno, CA.
For Bruce Breitman, an individual, BBG Ltd, a corporation, Defendants: David N Chandler, LEAD ATTORNEY, Santa Rosa, CA; David N. Chandler, Jr., David N. Chandler P.C., Santa Rosa, CA.
For Barry Goldner, an individual and attorney in Klein DeNatale Goldner, Defendant: Connie M Parker, Klein DeNatale Goldner Cooper Rosenlieb & Kimball LLP, Fresno, CA.
For David N Chandler, an individual and an attorney at David N. Chandler PC, David N Chandler PC, a corporation, Defendants: David N Chandler, Santa Rosa, CA.
For CitiMortgage Inc, CR Title Services Inc, Citibank, N.A., Brian H. Gunn, Andrew A. Bao, Heather S. Kim, Wolfe & Wyman LLP, Defendants: Andrew Bao, LEAD ATTORNEY, Meagan S. Tom, Wolfe and Wyman LLP, Walnut Creek, CA.
For The Estate of Peter J Zouras, for Peter Zouras an individual now deceased, Defendant: James A Lassart, LEAD ATTORNEY, Adrian G Driscoll, Murphy Pearson Bradley & Feeney, San Francisco, CA.
Present: The Honorable Fernando M. Olguin, United States District Judge.
Proceedings: (In Chambers) Order Re: Pending Motions
The Honorable Fernando M. Olguin, United States District Judge.
Having reviewed the briefing with respect to the motions to dismiss filed by (1) the United States and the Honorable Fredrick Clement; (2) Bruce Breitman and BBG Ltd.; (3) the Estate of Peter J. Zouras; (4) Klein, DeNatale, Goldner, Cooper, Rosenlieb, & Kimball, LLP, Barry Goldner, Lisa Holder, and Jeffrey Vetter; (5) David Chandler and Chandler PC; and (6) CitiMortgage, Inc., Citibank N.A., CR Title Services, Inc., Wolfe & Wyman LLP, Brian H. Gunn, Andrew A. Bao, and Heather S. Kim (collectively " Motions to Dismiss"); and the motions to strike filed by (1) Bruce Breitman and BBG Ltd.; (2) David Chandler and Chandler PC; and (3) Andrew A. Bao, CR Title Services, Inc., CitiMortgage Inc., Citibank, N.A., Brian H. Gunn, Heather S. Kim, and Wolfe & Wyman LLP (collectively, " Motions to Strike"), the court concludes that oral argument is not necessary to resolve the Motions to Dismiss and Motions to Strike. See Fed.R.Civ.P. 78; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001).
INTRODUCTION
Dr. Salma Agha-Khan (" Dr. Agha-Khan" or " plaintiff") filed this action in Los Angeles County Superior Court on February 10, 2014. (See Notice of Removal (" NOR"), Exhibit (" Exh.") 1 (" Complaint"). In her Complaint, plaintiff named as defendants the Honorable Fredrick Clement (" Judge Clement"), a Judge of the United States Bankruptcy Court; Jeffrey Vetter (" Mr. Vetter"), Trustee of the United States Bankruptcy Court; Bruce Breitman (" Mr. Breitman"), the principal of a buyer of an asset of the bankruptcy estate; Lisa Holder (" Ms. Holder") and Klein, DeNatale, Goldner, Cooper, Rosenlieb, & Kimball, LLP (" KDG"), the trustee's lawyer and that lawyer's firm; and Peter Zouras (" Mr. Zouras"), who previously represented Mr. Breitman and his firm in a separate action initiated by plaintiff in state court. (See Complaint at 1 & 5-6). The case was removed to this court on May 6, 2014. (See NOR at 1). The gravamen of the Complaint was that the defendants allegedly acted improperly in the course of plaintiff's Chapter 7 bankruptcy case filed in the Bankruptcy Court for the Eastern District of California, Case No. BK 10-16183 (" Bankruptcy Case"). (See Complaint at 4-7).
Named in Dr. Agha-Khan's filings as " Klein, Denatale, & Goldner." (See, e.g., Complaint at 1).
Defendants Mr. Vetter, Ms. Holder, and KDG, as well as the United States and Judge Clement, filed Motions to Dismiss the Complaint, which were granted with leave to amend on July 11, 2014. (See Court's Order of July 11, 2014, at 2-3). Subsequently, Dr. Agha-Khan filed a First Amended Complaint (" FAC"), adding two additional parties, Barry Goldner (" Mr. Goldner"), a partner in KDG, and BBG Ltd (" BBG"), the buyer of an asset of the bankruptcy estate. (See FAC at 1, 4 & 6). The FAC concerned the same alleged improper acts during plaintiff's Bankruptcy Case. ( See id. at 2-14).
The FAC also named the Estate of Peter Zouras (" Zouras Estate") because Mr. Zouras passed away. (See FAC at 1).
Defendants Mr. Vetter, Ms. Holder, Mr. Goldner, KDG, the United States, Judge Clement, Mr. Breitman, and BBG filed motions to dismiss, which were granted with leave to amend on August 29, 2014. (See Court's Order of August 29, 2014, at 2-3). The court stated that it would " give plaintiff one last opportunity to amend her complaint." ( See id. at 1). Plaintiff then filed a Second Amended Complaint (" SAC"), adding seven new defendants: David N. Chandler (" Mr. Chandler"), counsel for BBG and Mr. Breitman during the purchase of an asset of the bankruptcy estate; Chandler PC, Mr. Chandler's law firm; and CitiMortgage Inc., CR Title Services, ReMax Real Estate Corporation, Debbie Banducci, and ReMax Magic, all of who were involved in a foreclosure of Dr. Agha-Khan's former residence. (See SAC at 1, 8, 13-14 & 31). The SAC contains over 100 pages of textual allegations, a declaration, and over 475 pages of exhibits. (See SAC). Again, the crux of the allegations against all the parties is that they acted improperly in the Bankruptcy Case and related transactions. ( See id. at 3-65). Defendants then filed the instant Motions to Dismiss and Motions to Strike.
FACTUAL ALLEGATIONS
The SAC's allegations are organized into five " conglomerations of frauds, " all of which relate to plaintiff's Bankruptcy Case and certain estate assets. With respect to the first " conglomeration of frauds, " Dr. Agha-Khan alleges that defendants conspired to " illegal[ly] reopen[]" her Bankruptcy Case, which had been closed on September 23, 2010. (See SAC at 3-7; Exh. 6, United States Trustee's Ex Parte Motion to Reopen Case (" Motion to Reopen" at ¶ 2). The United States Trustee sought to reopen the Bankruptcy Case, due to plaintiff's purported " fail[ure] to disclose in her bankruptcy schedules, including but not limited to, an interest in a limited liability corporation, " which " interest in said limited liability corporation is an asset which ha[d] not been administered by the estate." (See Motion to Reopen at ¶ 3). The Bankruptcy Case was reopened on September 18, 2012. (See SAC, Exh. 9, Order Granting United States Trustee's Ex Parte Motion to Reopen Case at 1-2). Plaintiff alleges that the granting of the Motion to Reopen was fraudulent. ( See id. at 3-7).
The second " conglomeration of frauds" relates to the attorneys that were hired by the trustee in plaintiff's Bankruptcy Case. (See SAC at 7-17). The trustee, Mr. Vetter, submitted an application to hire KDG to represent him in the bankruptcy proceedings. (See SAC, Exh. 14, Application for Order Authorizing Trustee to Employ Attorneys Effective September 13, 2012 (" Attorney Application") at ¶ 6). Mr. Vetter represented that based upon the declaration of Lisa Holder, a KDG attorney, he " believe[d] that [KDG and] its members and/or associates do not hold or represent an interest adverse to that of [Mr. Vetter] or the estate." ( See id., Attorney Application at ¶ 10). However, Dr. Agha-Khan alleges that the firm previously represented her in a separate matter and ultimately settled a malpractice claim that Dr. Agha-Khan asserted against the firm. (See SAC at 7). She alleges that Mr. Vetter " deliberately conceal[ed] the conflict of interest between [her] and Defendant KDG law firm[.]" (Id. at 9). However, the SAC also includes an exhibit containing a statement by Ms. Holder that KDG's " conflict check had not picked up prior representation of Dr. Agha" because of the different names plaintiff had used in the past. (See SAC, Exh. 17, Supplemental Declaration of Lisa Holder Regarding Order Authorizing Trustee to Employ Attorneys Effective September 13, 2012 (" Suppl. Holder Decl.") at ¶ ¶ 2-3). Moreover, the KDG representation related to " construction defects" at plaintiff's house, and " [t]he specific attorney who represented Dr. Agha[-Khan] left the firm in or about May 2010." ( See id. at ¶ ¶ 3 & 8). In the Bankruptcy Case, Judge Clement approved the employment of KDG, and found that the firm's prior representation of plaintiff " d[id] not present grounds for disqualification." (See SAC, Exh. 20, Civil Minutes of the United States Bankruptcy Court, Eastern District of California, dated January 23, 2013).
Dr. Agha-Khan also alleges that KDG's prior representation of Citibank was a conflict of interest because Citibank " happens to be Plaintiff-Debtors [sic] primary residence mortgage holder that [sic] later illegally evicted her and stole all her belongings[.]" (See SAC at 11).
The third, fourth, fifth, and sixth " conglomerations of frauds" concern plaintiff's allegations regarding the sale of an interest in an LLC and the interest in litigation in which the LLC was involved. (See SAC at 17-59). Although the SAC is difficult to understand, the SAC Exhibits clarify that the " San Francisco Lawsuit" refers to a lawsuit filed in October 2011, on behalf of Dr. Agha-Khan and a limited liability corporation, " Vodka from Around the World" (" VFAW") -- in which plaintiff had an interest. ( See id., Exh. 21, Complaint (" VFAW Complaint") at ¶ ¶ 1-2). The defendants in the San Francisco Lawsuit included Mr. Breitman and BBG, a real estate broker and a real estate brokerage firm that allegedly advised Dr. Agha-Khan and VFAW regarding Dr. Agha- Khan's investment in a San Francisco nightclub. (See VFAW Complaint at ¶ ¶ 3-4 & 18). In the San Francisco Lawsuit, plaintiff alleged, among other things, that Breitman and BBG breached their representation agreement by " encourag[ing] Plaintiffs to occupy the [club premises] without making sure that the landlord had first approved Plaintiffs as a subtenant." ( See id. at ¶ 39). The landlord later forced plaintiffs to vacate the premises, leading to a loss in plaintiff's investment. ( See id. at ¶ ¶ 41-43).
VFAW and the interest in the San Francisco Lawsuit were the assets that were the subject of the Motion to Reopen. (See Attorney Application at ¶ ¶ 3-5).
In the re-opened Bankruptcy Case, Mr. Vetter proposed to sell the estate's interest in VFAW and the San Francisco Lawsuit at a " private sale with an opportunity for overbid at the hearing, " believing the sale to be " in the best interest of the estate because it will liquidate an asset of the estate quickly without the need to enter into litigation that may have an uncertain result." (See SAC, Exh. 31, Motion for Order Authorizing Sale and Assignment of State Court Litigation Claim and LLC Interest to BBG, Ltd., at 3). After considering Dr. Agha-Khan's opposition, the Bankruptcy Court granted Mr. Vetter's motion. (See SAC, Exh. 45, Civil Minutes of the United States Bankruptcy Court, Eastern District of California, dated January 23, 2013). The Bankruptcy Court rejected plaintiff's argument that the trustee, Mr. Vetter, had abandoned the interest in the San Francisco Lawsuit, and found that the interest in the litigation remained the property of the estate. ( See id. at 3-4). While plaintiff had an opportunity to bid to repurchase the interest in VFAW and the San Francisco Lawsuit, she withdrew from bidding. ( See id. at 1). The VFAW interest and the interest in the San Francisco Lawsuit were sold to BBG on January 24, 2013. (See SAC, Exh. 44 Order Authorizing Sale and Assignment of State Court Litigation Claim and LLC Interest to BBG Ltd., at 1-2). In the SAC, plaintiff alleges that " Defendants lay a fraudulent claim on Plaintiffs [sic] San Francisco lawsuit calling it an 'asset' when only a trial date was set and claiming it to be 'PROPERTY OF ESTATE' lying that Plaintiff had failed to disclose and schedule this possible future 'lawsuit asset, ' an intangible asset, in Schedule B of her original Bankruptcy schedules." (See SAC at 17) (capitalization in original).
In sum, Dr. Agha-Khan claims that the reopening of her Bankruptcy Case because of her supposedly undisclosed interest in VFAW and the San Francisco Lawsuit, and the subsequent sale of such interests, were improper.
LEGAL STANDARD
A motion to dismiss for failure to state a claim should be granted if plaintiff fails to proffer " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly (Twombly), 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Cook, 637 F.3d at 1004; Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010). Although the plaintiff must provide " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. at 1965; Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; see also Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), cert. denied, 544 U.S. 974, 125 S.Ct. 1828, 161 L.Ed.2d 724 (2005) (" [T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.") (citations and internal quotation marks omitted). " Specific facts are not necessary; the [complaint] need only give the defendant[s] fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (citations and internal quotation marks omitted); see Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.
In considering whether to dismiss a complaint, the court must accept the allegations of the complaint as true, Erickson, 551 U.S. at 93-94, 127 S.Ct. at 2200; Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994), construe the pleading in the light most favorable to the pleading party, and resolve all doubts in the pleader's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969); Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). Dismissal for failure to state a claim can be warranted based on either a lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may be dismissed also for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. See Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).
DISCUSSION
I. FAILURE TO COMPLY WITH FEDERAL RULE OF CIVIL PROCEDURE 8(A).
Rule 8(a) of the Federal Rules of Civil Procedure (" Rule 8(a)") provides that a pleading that states a claim for relief must contain a " short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a)(2). " In the exercise of their discretion and in order to promote judicial economy, courts often will use a motion directed at the form of a pleading (or a motion to dismiss under Rule 12(b)(6)) as a vehicle for considering whether any possible claim for relief [under Rule 8(a)] exists." Wright & Miller, 5 Federal Practice & Procedure § 1217, at 256-58 (3d ed. 2004). The purpose of Rule 8(a) is to ensure that a complaint " fully sets forth who is being sued, for what relief, and on what theory, with enough detail to guide discovery." McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
In McHenry, the Ninth Circuit described a complaint that did not meet the standard of Rule 8(a):
[T]he complaint in the case at bar is argumentative, prolix, replete with redundancy, and largely irrelevant. It consists largely of immaterial background information . . . . Rather than set out the basis for a lawsuit, the pleading seems designed to provide quotations for newspaper stories. Despite all the pages, requiring a great deal of time for perusal, one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery.
. . .
Prolix, confusing complaints such as the ones plaintiffs filed in this case impose unfair burdens on litigants and judges. As a practical matter, the judge and opposing counsel, in order to perform their responsibilities, cannot use a complaint such as the one plaintiffs filed, and must prepare outlines to determine who is being sued for what. Defendants are then put at risk that their outline differs from the judge's, that plaintiffs will surprise them with something new at trial which they reasonably did not understand to be in the case at all, and that res judicata effects of settlement or judgment will be different than what they reasonably expected. The rights of the defendants to be free from costly and harassing litigation must be considered.
. . .
The judge wastes half a day in chambers preparing the short and plain statement which Rule 8 obligated plaintiffs to submit. He must then manage the litigation without knowing what claims are made against whom. This leads to discovery disputes and lengthy trials, prejudicing litigants in other case[s] who follow the rules, as well as defendants in the case in which the prolix pleading is filed.
84 F.3d at 1177, 1179-80 (internal quotation marks and citations omitted).
This case raises the same concerns as the complaint in McHenry. Plaintiff's SAC provides 66 pages of conclusory arguments and allegations, (see SAC at 1-66), some of which are styled as " conglomerations of fraud, " ( see id. at 3-58), while others are labeled " general allegations." ( See id. at 59-66). Then, for another 40 pages, Dr. Agha-Khan lays out nine claims for relief. ( See id. at 66-106). Much of what she alleges is vague, confusing, and nonsensical. She also attached a declaration and over 475 pages of exhibits. (See Declaration of Salma Agha-Khan, MD., dated August 27, 2014; SAC Exhs. 1-53). Because the SAC fails to lay out the factual basis for the claims, the court had to review all of the exhibits in order to understand what allegedly transpired between the parties.
Further, the SAC generally names groups of " defendants" without clarifying which actions are attributable to which individuals, entities, or combination thereof, and it fails to even mention a number of defendants included in the case caption. (See, generally, SAC). The SAC presents the same problems at issue in McHenry: it is difficult to determine " what claims are made against whom, " 84 F.3d at 1180, and it is unreasonable to expect the parties and the court to sift through hundreds of pages of largely irrelevant and disorganized material to determine the grounds upon which plaintiff's claims are based.
Although courts may dismiss with leave to amend for failure to comply with Rule 8(a), the court does not believe that is appropriate in this case. The court specifically gave plaintiff " one last opportunity to amend her complaint" when it dismissed the First Amended Complaint. (See Court's Order of August 29, 2014, at 1). Moreover, the deadline to amend pleadings has passed. See Case Management Order of July 10, 2014, at 16. " It is settled that the grant of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). The inquiry under Rule 15(a) is guided by an examination of several factors, including: (1) whether the amendment causes the opposing party undue prejudice; (2) whether the amendment is sought in bad faith; (3) whether the amendment causes undue delay; (4) whether the amendment constitutes an exercise in futility; and (5) whether the plaintiff has previously amended his or her complaint. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 & n.3 (9th Cir. 1987).
As the deadline to amend pleadings has passed, plaintiff must also satisfy the requirements of Federal Rule of Civil Procedure Rule 16(b) to modify the scheduling order. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (a party seeking to amend pleading after date specified in scheduling order must show " good cause" for amendment under Rule 16(b), and also demonstrate that amendment was proper under Rule 15).
The court is persuaded that plaintiff's claims cannot be saved through amendment. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (" Courts are not required to grant leave to amend if a complaint lacks merit entirely."). Not only does plaintiff's SAC fail to meet the requirements of Rule 8(a), but, as explained in more detail below, it fails to state a claim against any defendant for any cause of action. It would be futile to afford plaintiff a fourth opportunity to state a claim. See Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (" [t]he district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.") (internal quotation marks omitted).
II. INDIVIDUAL CLAIMS AND CAUSES OF ACTION.
Plaintiff asserts nine causes of action against the various defendants. (See SAC at 1 & 66-106). Plaintiff's first cause of action for fraud is alleged as to all defendants. ( See id. at 66-72). Her second cause of action for violation of her civil rights under 42 U.S.C. § 1983 is alleged as to Judge Clement, Mr. Vetter, Ms. Holder, and KDG. ( See id. at 72-91). The third cause of action for violation of the California Constitution is alleged as to Judge Clement and Mr. Vetter. ( See id. at 91-99). The fourth through sixth causes of action, for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress are asserted against all defendants. ( See id. at 99-104). The seventh cause of action for conversion is alleged as to all defendants except Judge Clement. ( See id. at 104). The eighth cause of action for intentional interference with prospective business advantage is alleged as to all defendants, ( see id. at 104-05), and the ninth cause of action for violation of the Hobbs Act, 18 U.S.C. § 1951, is asserted against Judge Clement, Mr. Vetter, Ms. Holder, KDG, Mr. Breitman, BBG, and Mr. Goldner. ( See id. at 105-06).
The causes of action identified on the face of the operative complaint, (see SAC at 1), are slightly different than those substantively addressed in the SAC. ( See id. at 66-106). In particular, plaintiff identifies " 10. Punitive Damages" on the face of the SAC. ( See id. at 1). However, punitive damages is a form of relief, not an independent cause of action. In addition, the SAC refers to a cause of action for " 2. Use of Force to Steal Plaintiff[']s Property under Color of Professional Right, " which corresponds to plaintiff's ninth cause of action under the Hobbs Act. ( See id. at 105-06). The court follows the order of the causes of action as discussed in the body of the SAC. ( See id. at 66-106).
A. Claims that Fail as to All Defendants.
Because plaintiff has failed to state claim under the following causes of action, they are dismissed as to all defendants. Accordingly, the court disposes of them at the outset and does not address them below in its discussion of various defendants and/or groups of defendants.
1. Seventh Cause of Action for Conversion .
To state a claim for conversion, a " plaintiff must establish an actual interference with his ownership or right of possession. . . . Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion." Moore v. Regents of the Univ. of Cal., 51 Cal.3d 120, 136, 271 Cal.Rptr. 146, 793 P.2d 479 (1990) (internal quotation marks and citations omitted).
Here, Dr. Agha-Khan alleges that she " owned and had a right to possess and pursue" the San Francisco Lawsuit regarding VFAW, and that certain defendants " intentionally and substantially interfered with Plaintiff's property by taking possession of the lawsuit and the interest in her company" VFAW. (SAC at 104). However, as a result of her voluntary Chapter 7 bankruptcy filing, plaintiff's claim became the property of her bankruptcy estate. See 11 U.S.C. § 541(a)(1) (stating that the bankruptcy estate consists of " all legal or equitable interests of the debtor in property as of the commencement of the case."). In the Bankruptcy Case, the court found that the trustee, Mr. Vetter, had not abandoned the interest in the San Francisco Lawsuit, and found that the interest in the litigation remained the property of the estate. (See SAC, Exh. 45, Civil Minutes of the United States Bankruptcy Court, Eastern District of California, dated January 23, 2013, at 3-4). The Bankruptcy Court has exclusive jurisdiction over the property of the estate. See 28 U.S.C. § 1334(e)(1). As plaintiff did not have title to or possession of the subject property, plaintiff " cannot maintain an action for conversion." See Moore, 51 Cal.3d at 136. This claim is therefore dismissed as to all defendants.
2. Ninth Cause of Action for Violation of the Hobbs Act .
Plaintiff's ninth cause of action seeks recovery of civil damages pursuant to the Hobbs Act, 18 U.S.C. § 1951. (See SAC at 105-06). However, there is no express private right of action under the Hobbs Act, which only provides for criminal penalties. See 18 U.S.C. § 1951; John's Insulation, Inc. v. Siska Construction Co., 774 F.Supp. 156, 163-64 (S.D.N.Y. 1991). Nor is there an implied right of action. See Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 408-09 (8th Cir. 1999) (collecting cases and agreeing " that neither the statutory language of 18 U.S.C. § 1951 nor its legislative history reflect an intent by Congress to create a private right of action."). As a result, the ninth cause of action is dismissed as to all defendants.
B. Claims Against the United States.
Pursuant to the Notice of Substitution (" NOS") filed on May 8, 2014, the United States has been substituted in the place of Judge Clement as to plaintiff's common law causes of action. (See NOS at 2); see 28 U.S.C. § 2679(d); Osborn v. Haley, 549 U.S. 225, 229, 127 S.Ct. 881, 887, 166 L.Ed.2d 819 (2007) (discussing substitution procedure for common law claims). The common law causes of action set forth in the SAC include the first (fraud), fourth (negligence), fifth (intentional infliction of emotional distress), sixth (negligent infliction of emotional distress), and eighth (intentional interference with prospective business advantage).
This case was removed pursuant to 28 U.S.C. § 1442(a)(1). (See NOR at 2). When an action is removed from state court to the district court pursuant to 28 U.S.C. § 1442(a)(1), the jurisdiction of the district court upon removal is derivative of that held by the state court. See In re Elko County Grand Jury, 109 F.3d 554, 555 (9th Cir.) (citation omitted), cert. denied, 522 U.S. 1027, 118 S.Ct. 625, 139 L.Ed.2d 606 (1997); see also FBI v. Superior Court of Cal., 507 F.Supp.2d 1082, 1091-92 (N.D. Cal. 2007) (holding that the doctrine of derivative jurisdiction continues to apply to § 1442 removals and that the In re Elko decision is " analytically controlling."). " This means that where the state court lacked jurisdiction over the claim giving rise to the removal, the federal court acquires none, although in a like suit originally brought in federal court it would have had jurisdiction." Golden Eagle Ins. Corp. v. Allied Tech. Group, 83 F.Supp.2d 1132, 1134 (C.D. Cal. 1999) (internal quotation marks omitted).
Under the Federal Tort Claims Act (" FTCA"), exclusive jurisdiction for negligence-based tort claims against the United States lies with the district courts. See 28 U.S.C. § 1346(b)(1). As described in the NOS, the United States was substituted in the place of Judge Clement because he was " acting within the course and scope of his employment as Bankruptcy Judge for the Bankruptcy Court for the Eastern District of California at all times relevant to the incidents alleged" in the complaint. (NOS at 2-3). Because the district court had exclusive jurisdiction to hear the negligence-based tort claims against Judge Clement in his official capacity, plaintiff could not have filed them in state court. Thus, when the case was removed to this court, derivative jurisdiction was lacking. See Golden Eagle, 83 F.Supp.2d at 1134 (" [W]here the state court lacked jurisdiction over the claim giving rise to the removal, the federal court acquires none[.]").
Title 28 U.S.C. § 1346(b)(1) states, in relevant part, that " the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]" The FTCA is applicable to causes of action for negligence and negligent infliction of emotional distress. See Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, 1018-19 (9th Cir. 2007) (negligence claims); Sheehan v. United States, 896 F.2d 1168, 1173-74 (9th Cir. 1990) (negligent infliction of emotional distress).
In addition, the FTCA requires the exhaustion of administrative remedies before the commencement of a tort suit against the United States. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 110-13, 113 S.Ct. 1980, 1983-84, 124 L.Ed.2d 21 (1993) (stating that the " most natural reading of the statute indicates that Congress intended to require complete exhaustion . . . before invocation of the judicial process."). Because exhaustion of administrative remedies is a jurisdictional prerequisite to suit, an action filed before completing the exhaustion process is premature and must be dismissed due to the court's lack of subject matter jurisdiction. See McNeil, 508 U.S. at 110-13, 113 S.Ct. at 1983. The burden is on plaintiff to plead and prove compliance with this requirement. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988). Since plaintiff has not pled that she has filed an administrative claim prior to filing suit, (see, generally, SAC; Plaintiff's Opposition to Defendants United States of America and Fredrick Clement['s] Motion to Dismiss Second Amended Complaint (" Opp.")), nor is there any other evidence that she did so, (see Declaration of Mimi Crescenzi in Support of Motion to Dismiss Plaintiff's Second Amended Complaint by Defendants United States of America and Fredrick Clement, dated April 2, 2014, at ¶ 3), the court finds that she did not exhaust her administrative remedies as required by the FTCA. Accordingly, this court has no subject matter jurisdiction over these claims.
With respect to the intentional torts, the FTCA provides that sovereign immunity is not waived with respect to libel, slander, misrepresentation, deceit, or interference with contract rights. See 28 U.S.C. § 2680(h). Therefore, Dr. Agha-Khan's first (fraud) and eighth (intentional interference with prospective business advantage) are barred. See id.; see also Pauly v. United States Dep't of Agric., 348 F.3d 1143, 1151 (9th Cir. 2003) (finding that the plaintiff's fraud claims was barred by looking " beyond the labels used" by the plaintiff, and " examin[ing] whether the conduct upon which the claim is based constitutes one of the torts listed in [the statute]."); Small v. U.S., 333 F.2d 702, 704 (3d. Cir. 1964) (stating that the statutory exemption for interference with contract rights " extends not only to an action for the unlawful interference with existing contracts but also to actions for the unlawful interference with prospective contractual relations.").
As for plaintiff's fifth cause of action (intentional infliction of emotional distress), plaintiff's allegations are directed to the defendants' alleged fraud and intentional interference with prospective business advantage. (See SAC at 103) (" Because of Defendants [sic] actions and behaviors, and the conspiracies to defraud and the defrauding of Plaintiff; in addition to the violations as heretofore plead [sic], of her civil rights, including the prejudice, bias and other harm she suffers, she continues to suffer health and emotional problems."). To determine whether the FTCA applies, the court looks " beyond the labels" and examines the subject conduct. See Pauly, 348 F.3d at 1151. Under the circumstances, the court finds that plaintiff's cause of action for intentional infliction of emotional distress is based on the fraud and intentional interference with prospective business advantage allegations. Accordingly, this cause of action is also barred on sovereign immunity grounds.
Even if the cause of action for intentional infliction of emotional distress is not excluded under the FTCA, see Sheehan, 896 F.2d at 1172 (holding that " a claim based on conduct constituting the tort of intentional infliction of emotional distress is not excluded as a matter of law from FTCA by § 2680(h)"), the claim against Judge Clement must be brought in federal court. See 28 U.S.C. § 1346(b)(1). Thus, in this alternative scenario, plaintiff's fifth cause of action is barred under derivative jurisdiction grounds.
In short, for the reasons stated above, plaintiff's claims against the United States, as stated in her first (fraud), fourth (negligence), fifth (intentional infliction of emotional distress), sixth (negligent infliction of emotional distress), and eighth (intentional interference with prospective business advantage) causes of action, are dismissed.
C. Claims Against Judge Clement.
With the United States having been substituted for Judge Clement as to the non-constitutional tort claims, the remaining SAC claims against Judge Clement are the second and third causes of action for violation of Dr. Agha-Khan's rights pursuant to 42 U.S.C. § 1983 and under the due process and equal protection clauses of the California Constitution and various state statutes. (See SAC at 72-99).
In general, judges are immune from civil liability for damages arising out of their judicial acts, even if " unfairness and injustice to a litigant may result on occasion." Mireles v. Waco, 502 U.S. 9, 9-10, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991) (per curiam). Judicial immunity can be overcome in two circumstances: (1) where the judge acts outside the judge's judicial capacity; or (2) where the judge acts in the " complete absence of all jurisdiction." Mireles, 502 U.S. at 11-12, 112 S.Ct. at 288.
As for the first exception, plaintiff's SAC only alleges facts that arise out of Judge Clement's judicial actions, not any actions taken in his individual capacity. (See, e.g., SAC at 5) (" Defendant Judge Clement approved the illegal reopening of Bankruptcy order very quietly, no questions asked regarding lack of jurisdiction, lacking appropriateness or reasoning [sic]"); ( id.) (" Defendant Judge Clement also ordered to appoint a Trustee [sic]"); (id. at 9) (" Defendant Judge Clement issuing an order on this motion in nine days without giving Plaintiff-Debtor time to file an objection and later forbidding her from filing a written objection to these illegal actions and appointment"). Among the SAC's many exhibits are references to, and copies of, a number of filings and actions in the Bankruptcy Case as well as transcripts of hearings in that case. (See, e.g., Exhs. 5-7, 9, 10, 14-18, 20, 22-23, 30-31 & 33-49). All of Judge Clement's actions described in the SAC were decisions made in a case pending before him. (See, e.g., SAC at 5, 9). Thus, the first exception is not met.
Dr. Agha-Khan makes a number of allegations in an attempt to meet the second prong of the judicial immunity test. (See, e.g., Opp. at 2) (" Evidence that Defendant Judge Clement was an active participant lies in his quiet, no questions asked approval of allowing illegal reopening of Plaintiff's Bankruptcy LACKING JURISDICTION in direct violation of Bankruptcy laws which he knew very well as Bankruptcy Judge.") (capitalization in original); (id. at 3) (listing a number of " crimes, " which include allowing submission of defendants' motions, allowing appointment of trustee and appointment of KDG; holding hearings on matters such as the proper venue for the action). However, the SAC does not contain any facts suggesting that Judge Clement acted in complete absence of jurisdiction. (See, generally, SAC). Indeed, the record indicates that plaintiff's complaints regarding Judge Clement are all based on action that were clearly within the bounds of his jurisdiction. See, e.g., Crooks v. Maynard, 913 F.2d 699, 701 (9th Cir. 1990) (finding that because the judge had " colorable authority" to do what he did, " he did not act in clear absence of all jurisdiction."); Mireles, 502 U.S. at 13, 112 S.Ct. at 288 (courts are to examine the nature and function of the act, not the act itself).
In addition, plaintiff makes various allegations that she was discriminated against by Judge Clement, and that he " discriminate[d] against [her] due to her name, her gender and the color of her skin, " (see SAC at 94), and has " personal bias and prejudice" against her. ( See id. at 95). Even if such a theory were sufficient to overcome the high bar of judicial immunity, Dr. Agha-Khan has not alleged plausible facts to support these allegations. See Cholla, 382 F.3d at 973 (" [T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.") (citations and internal quotation marks omitted).
For these reasons, plaintiff's causes of action against Judge Clement under 42 U.S.C. § 1983 and the California Constitution and other state statutes are dismissed.
D. Claims Against KDG, Ms. Holder, Mr. Goldner, and Mr. Vetter.
Plaintiff asserts various claims against the bankruptcy trustee, Mr. Vetter, and his counsel. It is well-settled that " before suit is brought against a receiver leave of the court by which he was appointed must be obtained." Barton v. Barbour, 104 U.S. 126, 128, 26 L.Ed. 672 (1881). Known as the Barton doctrine, the doctrine requires that " a party must first obtain leave of the bankruptcy court before it initiates [1] an action in another forum [2] against a bankruptcy trustee or other officer appointed by the bankruptcy court [3] for acts done in the officer's official capacity." Crown Vantage, Inc. v. Fort James Corp., 421 F.3d 963, 970 (9th Cir. 2005) (collecting cases). As a result, leave of the appointing court is required before suit can be brought against a bankruptcy trustee or his or her counsel. See In the Matter of Linton, 136 F.3d 544, 545 (7th Cir. 1998). If the bankruptcy court has not granted leave, other courts do not have subject matter jurisdiction. See Crown Vantage, 421 F.3d at 971. There is no generalized tort exception to the rule. See Muratore v. Darr, 375 F.3d 140, 147 (1st Cir. 2004) (collecting cases and finding " no basis for recognizing some generalized tort exception to the Barton doctrine.").
The limited exception to the Barton doctrine relates to the trustee's " acts or transactions in carrying on business connected with [the estate's] property." See 28 U.S.C. § 959(a). This limited exception, however, does not apply to the trustee's administration of the estate. See In re DeLorean Motor Co., 991 F.2d 1236, 1241 (6th Cir. 1993) (" This [§ 959] exception does not apply to suits against the trustee for actions taken while administering the estate.").
Here, Dr. Agha-Khan has initiated an action in another forum (the Central District of California), she has sued the bankruptcy trustee (Mr. Vetter) and the attorneys appointed to represent him (Ms. Holder, Mr. Goldner, and KDG), and she is suing for acts done in relation to the administration of Dr. Agha-Khan's bankruptcy estate. (See, e.g., SAC at 17) (allegations regarding claims on plaintiff's " San Francisco lawsuit" and " calling it an 'asset'"). Plaintiff has not pled that she obtained leave from the bankruptcy court before initiating the instant case. (See, generally, id.). The docket from the Bankruptcy Case shows no such motion for leave was filed before plaintiff initiated this action, nor is there an order granting her leave to do so. (See Request for Judicial Notice in Support of Defendants Jeffrey Vetter's, Klein, DeNatale, Goldner, Cooper, Rosenleib & Kimball, LLP's, Barry L. Goldner's, and Lisa Holder's Motion to Dismiss Second Amended Complaint (" KDG RJN"), Exh. 1, Pacer Docket and Case History, at 1-16) (Document No. 80-3). In her SAC, Dr. Agha-Khan alleges that in September 2014, she filed a motion for an order granting her leave under Barton v. Barbour, and that she " anticipates a grant of her request shortly." (See SAC at 59). Anticipation that her motion will be granted, however, is insufficient. The doctrine specifically requires that she must " first obtain leave of the bankruptcy court before [she] initiates" an action. Crown Vantage, 421 F.3d at 970 (emphasis added). Accordingly, the court lacks subject matter jurisdiction over the claims against KDG, Ms. Holder, Mr. Goldner, and Mr. Vetter, and the claims against them are dismissed.
The court grants defendants' request to take judicial notice of this document. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (" We may take judicial notice of court filings and other matters of public record."); see also In re Zulueta, 520 Fed.Appx. 558, 559 (9th Cir. 2013) (taking judicial notice of the docket in underlying bankruptcy proceedings).
Although the reasons described in § II.D. are sufficient grounds upon which to dismiss the SAC with respect to these defendants, the court notes that the claims against these defendants cannot go forward because defendants are afforded the litigation privilege for their verbal or written statements made in court proceedings. See, e.g., Silberg v. Anderson, 50 Cal.3d 205, 213, 266 Cal.Rptr. 638, 786 P.2d 365 (1990); see also infra n. 13.
E. Claims Against BBG, Mr. Breitman, the Zouras Estate, Mr. Chandler, and Chandler PC.
Plaintiff's first cause of action against BBG, Mr. Breitman, the Zouras Estate, Mr. Chandler, and Chandler PC (" BBG Defendants") is for fraud. (See SAC at 66-72). When fraud is alleged, Federal Rule of Civil Procedure 9(b) (" Rule 9(b)") requires that " a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). Conclusory allegations of fraud are insufficient as a matter of law; Rule 9(b) requires a plaintiff to " identify the who, what, when, where and how of the misconduct charged, as well as what is false or misleading" about the conduct, and " why it is false." Cafasso, United States ex rel., 637 F.3d at 1055 (internal quotation marks and citations omitted); see Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1042 (9th Cir. 2010) (" [T]he complaint must allege the time, place, and content of the fraudulent representation; conclusory allegations do not suffice.").
David N. Chandler is also known as David N. Chandler, Sr. and practices law as David N. Chandler PC. (See Declaration of David N. Chandler, Jr. in Support of Motion to Dismiss and Motion to Strike, dated December 17, 2014, at ¶ 4) (Document No. 121). Plaintiff's SAC names " David N. Chandler." (See SAC at 1). Under the circumstances, the court finds that Dr. Agha-Khan has not filed suit against David N. Chandler, Jr., another attorney at Chandler PC. (See Chandler Decl. at ¶ 13). That plaintiff caused David N. Chandler, Jr. to be served with a summons does not alter that conclusion, as he was not named in the SAC.
Here, plaintiff has not pled fraud with the requisite particularity. In fact, she has failed to even mention Mr. Zouras, Mr. Chandler, Chandler PC, or BBG in the fraud cause of action. (See, generally, SAC). While the claim is alleged as to " all defendants, " ( see id. at 67), the body of the cause of action only mentions the conduct of other defendants. ( See id. at 68) (" Plaintiff alleges Defendants Breitman, Vetter, Holder, Goldner and Defendants [KDG], schemed to defraud and defrauded the Court[.]"; (id. at 69) (alleging fraud as to " Clement, Vetter, Holder, Goldner and KDG, " and Mr. Breitman). Plaintiff has failed to allege any facts against Mr. Zouras, Mr. Chandler, or BBG that state a claim for fraud. Further, even though Mr. Breitman is named in the cause of action, there are no allegations in the SAC from which any elements of fraud, as to Mr. Breitman or as to any other defendant, could be rationally determined. (See, generally, SAC). In short, the allegations of the SAC are insufficient to support a claim of fraud.
Plaintiff's second cause of action against the BBG Defendants is for negligence. (See SAC at 99-102). The elements of a cause of action for negligence are a legal duty to use due care, a breach of such legal duty, and proximate causation of the resulting injury. See Ladd v. County of San Mateo, 12 Cal.4th 913, 917, 50 Cal.Rptr.2d 309, 911 P.2d 496 (1996). Plaintiff's allegations are directed to the conduct of " Clement, Vetter, Holder, and KDJ [sic], " such as the alleged insufficiency of notice. (See SAC at 99). While this cause of action is alleged as to all defendants, it fails to even mention Mr. Zouras, Mr. Breitman, BBG, or Mr Chandler. (See, generally, id. at 99-102). Plaintiff fails to state a claim for negligence as to these defendants.
Plaintiff's third cause of action against the BBG Defendants is for intentional infliction of emotional distress. (See SAC at 102-03). To establish this claim, a plaintiff must prove (1) outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress, (2) the plaintiff's suffering severe emotional distress, and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. See Ess v. Eskaton Properties, Inc., 97 Cal.App.4th 120, 129, 118 Cal.Rptr.2d 240 (2002); Cochran v. Cochran, 65 Cal.App.4th 488, 494, 76 Cal.Rptr.2d 540 (1998). To be deemed outrageous, the conduct must be " so extreme as to exceed all bounds" of what is usually tolerated in a civil community, and the conduct must be intentional, or at least reckless, and intended to inflict injury or done with the realization that injury will result. See Ess, 97 Cal.App.4th at 130.
Dr. Agha-Khan has not made any specific allegations regarding her emotional distress claim. She refers vaguely to the " actions and behavior as plead in the paragraphs" of the Complaint, (SAC at 103), but does not refer at all to Mr. Zouras, Mr. Breitman, BBG, Mr. Chandler, or David N. Chandler, PC. Nowhere does the SAC allege that any of these individuals or entities engaged in any activity that was intended to inflict emotional distress upon plaintiff. (See, generally, id. at 1-107). As described previously, the SAC appears to allege that Mr. Zouras alerted the court of Dr. Agha-Khan's failure to list her claim as an asset in the Bankruptcy Case, ( see id. at 27), that Mr. Breitman and BBG purchased an asset in the reopened bankruptcy ( see id. at 25), and that Mr. Chandler represented them in that purchase. ( See id. at 23). Such acts, however, do not amount to outrageous conduct " so extreme" as to exceed all bounds of that usually tolerated in a civilized community.
Plaintiff's fourth cause of action against the BBG Defendants is for negligent infliction of emotional distress. (See SAC at 103-04). " Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply." Ess, 97 Cal.App.4th at 126. The court considers factors such as the foreseeability of harm, the degree of certainty of injury, the " closeness of the connection between the defendant's conduct and the injury suffered, " and " the moral blame attached to the defendant's conduct." Id. This claim fails for the same reasons as the negligence claim and intentional infliction of emotional distress claims. While this purported cause of action is alleged as to all defendants, it fails to even mention Mr. Zouras, Mr. Breitman, BBG, Mr Chandler, or Mr. Chandler's law firm. (See, generally, id. at 99-102 & 103-04). Accordingly, plaintiff has failed to allege sufficient facts to establish that such defendants owed her a duty, and she has failed to allege facts sufficient to show blameworthy conduct by Mr. Zouras, Mr. Breitman, BBG, Mr. Chandler, or Chandler PC.
Plaintiff's fifth cause of action against the BBG Defendants is for intentional interference with prospective business advantage. (See SAC at 104-05). Such claims require (1) an economic relationship between plaintiff and some third party, with the probability of future economic benefit to plaintiff; (2) defendant's knowledge of the relationship; (3) intentional acts on the part of defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to plaintiff proximately caused by the acts of defendant. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1153, 131 Cal.Rptr.2d 29, 63 P.3d 937 (2003). Furthermore, " a plaintiff must plead that the defendant engaged in an act that is wrongful apart from the interference itself." Id.
Plaintiff's SAC fails to allege facts supporting any of the above requirements as to Mr. Zouras, Mr. Chandler, and Chandler PC. (See, generally, SAC). Nowhere is there a description of any intentional acts by Mr. Zouras, Mr. Chandler, or Chandler PC, that were " designed to disrupt" any of Dr. Agha-Khan's business relationships. (See, generally, id.). She has therefore failed to state a claim against Mr. Zouras, Mr. Chandler, and Chandler PC for intentional interference with prospective business advantage.
The SAC also fails to state a claim as to Mr. Breitman and BBG. Plaintiff alleges that " [b]ecause of Defendants [sic] actions and behaviors, and specifically the lies told to Plaintiff by Defendant Breitman; [plaintiff] suffers and continues to suffer a loss of business reputation." (See SAC at 105). Plaintiff further alleges that defendants' conduct " made Plaintiff not credible as an investor . . . among other investors and colleagues, " leading plaintiff to lose " investment partners." (Id.). Plaintiff's allegations are directed to the generalized loss of prospective investment opportunities. Such generalized allegations fail to state a claim. See Logtale, Ltd. v. IKOR, Inc., 2013 WL 4427254, *6-7 (N.D. Cal. 2013) (dismissing claim for intentional interference and stating that " the plaintiff must identify a specific business relationship that the defendant disrupted"). Even if Dr. Agha-Khan had sufficiently pled facts with respect to these alleged lies, the SAC still fails to describe the disruption of a particular relationship, or Mr. Breitman's (or any other defendant's) knowledge of such a business relationship. (See, generally, SAC).
In short, the court finds that plaintiff has failed to state a claim with respect to all of the causes of action alleged against BBG, Mr. Breitman, the Zouras Estate, Mr. Chandler, and Chandler PC. Accordingly, the claims are dismissed.
In addition, although the reasons stated above, see supra at § II.E., are sufficient for dismissal, the court finds that defendants are to be afforded the litigation privilege for verbal and written statements in prior proceedings. See, e.g., Ward v. San Diego County Dept. of Social Servs., 691 F.Supp. 238, 239 (S.D. Cal. 1988) (stating that " [a]dvocates and witnesses are immune for the performance of their respective functions" in the judicial process.); Silberg, 50 Cal.3d at 213 (discussing the privilege under California law and noting that its purpose is to " assure utmost freedom of communication between citizens and public authorities" during the judicial process, and that the " external threat of liability" would be " inconsistent with the effective administration of justice."); Nilsen v. Neilson, 419 B.R. 807, 825 (B.A.P. 9th Cir. 2009) (" A bankruptcy proceeding is a judicial proceeding within the scope of California's litigation privilege").
F. Claims Against CR Title Services, Inc., CitiMortgage, Inc., and Citibank, N.A.
The court notes that the Motion by Defendants to Dismiss Plaintiff's Second Amended Complaint (" Citi Motion") (Document No. 124) filed on these parties' behalf was also purportedly filed on behalf of Wolfe & Wyman LLP, Brian H. Gunn, Andrew A. Bao, and Heather S. Kim. (See Citi Motion at 1-2). However, in the SAC, plaintiff only named defendants CitiMortgage, Inc., Citibank N.A., and CR Title Services. (See SAC at 1). That Dr. Agha-Khan purported to effectuate service on Wolfe & Wyman LLP and the individual attorneys does not alter that conclusion; they were not named in the SAC and therefore are not parties to the action. The court will address only the arguments and claims that relate to defendants that have been named in the operative complaint.
Plaintiff's causes of action asserted against CRT, CitiMortgage, Inc., and Citibank, N.A. are: (1) fraud; (2) negligence; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) conversion; and (6) intentional interference with prospective business advantage. (See, generally, SAC). As noted above, see supra at § II, these causes of action are purportedly at issue due to plaintiff's reference to " all defendants" in the SAC, not because of the factual allegations.
In any event, although Dr. Agha-Khan's complaint names CR Title Services, Inc. (" CRT") as a defendant, she does not allege any facts or causes of action as to CRT. (See, generally, SAC). Nor is CRT listed or described in the " Parties/Defendants" section of the SAC. (See, generally, id. at 64). Accordingly plaintiff has failed to state a claim against CRT, and all causes of actions as to CRT are dismissed.
With respect to CitiMortgage, Inc. and CitiBank, N.A. (collectively " CMI"), the SAC mentions them a few times. First, in describing the " Second Conglomeration of Frauds Related to Illegal Hiring of Revenging Unethical Attorney Ignoring Serious Conflict of Interest, " Dr. Agha-Khan alleges that certain KDG attorneys lied about having " no connections with the trustee or Debtor" and then listed " Citibank" as a client, which " happens to be Plaintiff-Debtors [sic] primary residence mortgage holder that later illegally evicted her and stole all her belongings." (SAC at 11). Plaintiff repeats the same allegations later in the same section, alleging that KDG and Ms. Holder failed to disclose a conflict of interest because they previously represented plaintiff in her suit against the builder of her personal residence, upon which " CitiBank h[eld] the lien[.]" ( See id. at 13). Finally, she alleges that the residence was " illegally foreclosed by CitiMortgage after agreeing to a loan modification and stating this foreclosure to be a mistake but instead of reversing the foreclosure bypassed the bankruptcy court and obtained unlawful detainer in city court then fraudulent [sic] and illegally evicted [her.]" ( See id. at 13-14) (internal quotation marks, capitalization, and emphases omitted). Thus, plaintiff's allegations are directed to CMI's foreclosure, and KDG's representation of Citibank.
Like CRT, however, CMI is not listed in the " Parties/Defendants" section of the SAC. (See SAC at 64-65).
Dr. Agha-Khan's claims based on these allegations fail for a number of reasons. First, the vague, conclusory statements are contained within allegations regarding conflicts of interest among attorneys and other parties in connection with an unrelated asset in the Bankruptcy Case. (See SAC at 11-14). Second, even the section heading regarding the " conglomeration of frauds related to illegal hiring of revenging unethical attorneys" indicates that the crux of plaintiff's allegations concern the alleged conflicts of interest among individuals involved in the Bankruptcy Case, not the actions of CMI in the unrelated foreclosure proceeding. ( See id. ). Thus, none of the causes of action plaintiff brings relate in any way to her factual allegations regarding CMI's conduct. (See, generally, id.).
Perhaps more importantly, plaintiff's claims against CMI are barred by the doctrine of res judicata, as it appears that Dr. Agha-Khan seeks to relitigate the foreclosure of her residence, which was the subject of a prior action. (See, e.g., Request for Judicial Notice by Defendants in Support of Motions to Dismiss and Strike Plaintiff's Second Amended Complaint (" CMI RJN"), Exh. N (Kahn v. CMI Judgment), Exh. L (Kahn v. CMI complaint)) (Document No. 126). That action was dismissed with prejudice, and judgment was entered in favor of CMI. (See RJN Exh. M (order dismissing Kahn v. CMI) & Exh. N (Judgment). By naming CMI in this action, Dr. Agha-Khan evidently seeks to relitigate previously-adjudicated issues with respect to the foreclosure sale and subsequent unlawful detainer in which she was involved. California law does not permit her to do so. See Noble v. Draper, 160 Cal.App.4th 1, 11, 73 Cal.Rptr.3d 3 (2008) (" Res judicata prevents relitigation of the same cause of action in a second suit between the same parties . . . [J]udgment for the defendant serves as a bar to further litigation of the same cause of action."). Accordingly, all of plaintiff's claims against CMI are dismissed.
The court grants in part the Request for Judicial Notice (Document No. 126) and takes judicial notice of these prior court documents and filings, numbered RJN Exhs. L, M, and N. A court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 688-689 (9th Cir. 2001).
G. Claims Against ReMax Real Estate Corporation, Debbie Banducci, and ReMax Magic.
Plaintiff's causes of action asserted against ReMax Real Estate Corporation, Debbie Banducci, and ReMax Magic are (1) fraud, (2) negligence, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, (5) conversion, and (6) intentional interference with prospective business advantage. (See, generally, SAC at 66-106). As discussed in § § II and II.F., these causes of action are purportedly at issue due to plaintiff's reference to " all defendants" in the SAC, not because of the factual allegations.
Dr. Agha-Khan has named ReMax Real Estate Corporation, Debbie Banducci, and ReMax Magic (" ReMax defendants") as defendants in the SAC, (see SAC at 1), but has not alleged any facts or causes of action against them. (See, generally, id. at 66-106). Nor are they listed in the " Parties/Defendants" section of the SAC. (See, generally, id. at 64-66). Plaintiff generally alleges that she is " sure" that the " illegal foreclosure" was accomplished through " yet to be discovered existing ties with ReMax Realty and its principal Debbie Banducci." ( See id. at 8). As stated before, the foreclosure of Dr. Agha-Khan's prior residence is unrelated to the bankruptcy dispute at issue, and it was previously litigated in the state court. Because plaintiff has failed to state a claim against the ReMax defendants all claims against them are dismissed.
This Order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT:
1. Defendants United States of America and Fredrick Clement's Motion to Dismiss Plaintiff's Second Amended Complaint (Document No. 74) is granted.
2. Defendants Bruce Breitman and BBG Ltd.'s Motion to Dismiss Case (Document No. 75) is granted. The Motion to Strike Amended Complaint (Document No. 76) is denied as moot.
3. Defendant Estate of Peter J. Zouras's Motion to Dismiss Plaintiff's First and Fourth through Eighth Claims for Relief Pursuant to F.R.C.P. 12(b)(6) (Document No. 78) is granted.
4. Defendants Klein, DeNatale, Goldner, Cooper, Rosenlieb, & Kimball, LLP, Lisa Holder, Barry L. Goldner, and Jeffrey Vetter's Motion to Dismiss Second Amended Complaint (Document No. 80) is granted.
5. Defendants Klein, DeNatale, Goldner, Cooper, Rosenlieb, & Kimball, LLP, Lisa Holder, Barry L. Goldner, and Jeffrey Vetter's Request for Judicial Notice (Document No. 80-3) is granted in part, and denied in part as moot.
6. Defendant David N. Chandler and Chandler PC's Motion to Dismiss (Document No. 119) is granted. Defendant David N. Chandler and Chandler PC's Motion to Strike Complaint (Document No. 120) is denied as moot.
7. Defendants CitiMortgage, Inc., Citibank N.A., CR Title Services, Inc., Wolfe & Wyman LLP, Brian H. Gunn, Andrew A. Bao, and Heather S. Kim's Motion to Dismiss Plaintiff's Second Amended Complaint (Document No. 124) is granted. The Motion to Strike Second Amended Complaint (Document No. 125) is denied as moot.
8. Defendants CitiMortgage, Inc., Citibank N.A., and CR Title Services, Inc.'s Request for Judicial Notice (Document No. 126) is granted in part, and denied in part as moot.
9. The parties' additional Request for Judicial Notice (Document Nos. 72, 77, 82, 84, 101, 107, 122, 126, 146, 150, 171, 177, 182, 194, 199, 200) are denied as moot.
10. The following motions and applications are denied as moot: Document Nos. 81, 83, 102, 103, 129, 135, 141, 142, 164, 179, 195, 196.
11. Judgment shall be entered accordingly. The parties shall bear their own fees and costs.