Neal v. Select Portfolio Servicing Inc.

• Court: District Court, N.D. California
• Decided: February 25, 2021
• Docket: 5:20-cv-07127
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 RALPH B. NEAL, 8 Case No. 5:20-cv-07127-EJD Plaintiff, 9 ORDER GRANTING DEFENDANT JP v. MORGAN CHASE BANK, N.A.’S 10 MOTION TO DISMISS; DECLARING SELECT PORTFOLIO SERVICING INC., PLAINTIFF A VEXATIOUS LITIGANT 11 et al., Re: Dkt. No. 11 12 Defendants.

13 14 “This is the [fifth] case initiated by Plaintiff Ralph B. Neal concerning residential property 15 located on Calco Creek Drive in San Jose.”1 Neal v. Select Portfolio Servicing, Inc., 2018 WL 16 905942, at * 1 & n.1 (N.D. Cal. Feb. 15, 2018) (“Neal III”). The first four cases ended in defense 17 judgments after all causes of action were dismissed without leave to amend. Although Plaintiff 18 may have renamed his causes of action, they are factually identical to the claims asserted in the 19 earlier cases. In addition, Plaintiff is requesting that the Court enjoin all defendants from 20 foreclosing on his home and for defendants to provide him damages, which is identical to the 21

22 1 The other four cases are Neal v. Select Portfolio Servicing, Inc., Case No. 5:15-cv-03212-EJD 23 (“Neal I”), Neal v. Select Portfolio Servicing, Inc., Case No. 5:16-cv-04923-EJD (“Neal II”), Neal v. Select Portfolio Servicing, Inc., 2018 WL 905942 (N.D. Cal. Feb. 15, 2018) (“Neal III”), and 24 Neal v. First American Title Insurance Co., 2019 WL 6771809 (N.D. Cal. Dec. 12, 2019) (“Neal IV”). The Court again “takes judicial notice of the pleadings filed in these actions.” See Fed. R. 25 Evid. 201(b) (providing that the court ‘may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy 26 cannot reasonably be questioned’); see also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (holding the court ‘may take judicial notice of court filings and other 27 matters of public record’).” Neal III, 2018 WL 905942 at *1 n.1. Case No.: 5:20-cv-07127-EJD 1 relief sought in his earlier cases. The only change in this case is the inclusion of Defendant JP 2 Morgan Chase Bank, N.A. (“Chase”); Defendants U.S. Bank NA, Successor in Interest to La Salle 3 Bank, U.S. Bank NA as Trustee on behalf of the holders of the WAMU Mortgage Passthrough 4 Certificates Series 2007-AA6 (“U.S. Bank”), Select Portfolio Servicing Inc. (“Select Portfolio”), 5 First American Title Insurance Co. (“FATCO”), and Doe Defendants 1-20 were parties to the 6 earlier suits. 7 Defendant Chase now seeks the same result in this case and moves to dismiss the 8 complaint, and all causes of action alleged therein, on the various grounds of res judicata, lack of 9 standing, and for failure to state a claim. Motion to Dismiss (“Mot.”), Dkt. No. 11. Chase also 10 moves for a pre-filing order barring future suits from Plaintiff based on the subject matter of this 11 case. Id. The Court finds it appropriate to take the motion under submission for decision without 12 oral argument pursuant to Civil Local Rule 7-1(b). For the reasons set forth below, both requests 13 are GRANTED. 14 I. BACKGROUND2 15 The allegations in this complaint largely track those asserted in Neal I, Neal II, Neal III, 16 and Neal IV. On May 17, 2007, Plaintiff purchased his Calco Creek Property (the “Property”) 17 with a $1,000,000 loan (“Loan”) from Washington Mutual Bank (“Washington Mutual”), secured 18 by a deed of trust (“DOT”), with California Reconveyance Company (“CRC”) serving as trustee. 19 See Complaint (“Compl.”), Dkt. No. 1-1, Ex. A ¶¶ 13-14; Compl., Ex. B. On June 1, 2007, 20 Washington Mutual assigned the DOT to LaSalle Bank, N.A. (“LaSalle Bank”) as trustee for 21 WaMu Mortgage Pass-Through Certificates Series 2007-OA6 (“WaMu Trust”). RJN Exs. B, C. 22

23 2 The following facts are taken from Plaintiff’s complaint and judicially noticeable documents. 24 Where, as here, the complaint attaches exhibits, those exhibits are treated as part of the factual allegations of the complaint for purposes of a motion to dismiss. See Durning v. First Boston 25 Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). “Where an exhibit to a 26 pleading is inconsistent with the pleading, the exhibit controls.” Gamble v. GMAC Mortg. Corp., 2009 WL 400359, at *3 (N.D. Cal. Feb. 18, 2009). For the reasons discussed below, Chase’s 27 Request for Judicial Notice (“RJN”), Dkt No. 12 is also granted. Case No.: 5:20-cv-07127-EJD 1 Washington Mutual remained the servicer for the loans held by the WaMu Trust, including the 2 Loan. See RJN Ex. B. 3 In September 2008, Washington Mutual was closed by the Office of Thrift Supervision 4 (“OTS”), and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. 5 Compl. ¶ 14; Compl., Ex. D. On September 25, 2008, the FDIC allocated Washington Mutual’s 6 assets and liabilities in accordance with the Purchase and Assumption Agreement (“P&A 7 Agreement”) entered into between the FDIC and Chase. Compl., Ex. D. Under the P&A 8 Agreement, Chase “specifically purchase[d] all mortgage servicing rights and obligations” of 9 WaMu. Id. § 3.1. 10 On November 4, 2010, CRC recorded an assignment noting a transfer of the DOT from 11 Chase as “successor in interest to Washington Mutual” to “Bank of America, National Association 12 successor by merger to LaSalle Bank NA as trustee for WaMu Mortgage Pass-Through 13 Certificates Series 2007-OA6 Trust.” Compl., Ex. B. Thereafter, Select Portfolio became the 14 loan’s servicer, with FATCO serving as the trustee under the DOT. See Compl. ¶¶ 2, 26; Compl., 15 Ex. C at 5. On May 29, 2019, FATCO recorded a Notice of Default against the Calco Creek 16 Property providing that Plaintiff owed past due payments of $609,031.19. Compl., Ex. C. 17 Plaintiff alleges he discovered “several material inconsistencies and inaccuracies” with the 18 total loan amount which he alleges is not “derived nor referenced as a continuity from the 19 origination of the subject loan from [Washington Mutual]. Compl. ¶ 34. Moreover, he claims 20 Chase had no legal authority to execute the Assignment to the Trust in November 2010 and that 21 the Assignment was “robo-signed.” Id. ¶¶ 23-24. Although the balance of the allegations in the 22 operative complaint are diffuse, Plaintiff generally alleges that “assignments of the subject loan 23 were . . . unlawfully made and that due to the pretentious chain of assignments, it [is] now 24 unknown and doubtful who is the current lender/beneficiary/assignee with legal authority and 25 standing regarding the mortgage on [the] subject property.” Id. ¶ 25. 26 Plaintiff commenced the current suit on June 17, 2019, in Santa Clara County Superior 27 Case No.: 5:20-cv-07127-EJD 1 Court against U.S. Bank, Select Portfolio, FATCO, and Chase, asserting causes of action for 2 “Declaratory Relief on Purchase and Servicing Agreement” and “Revocation of Assignments 3 Deed of Trusts,” against Chase. Compl. ¶¶ 33-63. While litigating this case in Santa Clara 4 County Superior Court, Plaintiff was also simultaneously litigating Neal IV before this Court. In 5 January 2020, the Santa Clara County Superior Court sustained a demurrer filed by U.S. Bank and 6 Select Portfolio without leave to amend, but Plaintiff sought reconsideration. See RJN Ex. G. 7 Chase was neither named as a defendant in Neal IV nor served by Plaintiff in this case until 8 September 11, 2020. Plaintiff’s reconsideration motion was pending at the time Chase filed its 9 notice of removal. See Notice of Removal, Dkt. No. 1. Chase filed the instant motion on October 10 20, 2020, to which Plaintiff filed an amended opposition on January 19, 2021. Opposition 11 (“Opp.”), Dkt. No. 21. Chase filed a reply to the opposition on January 22, 2021. Reply, Dkt. No. 12 22. 13 II. LEGAL STANDARDS 14 A. Federal Rule of Civil Procedure 12(b)(6) 15 Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a complaint 16 for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 17 dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its 18 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible when the 19 plaintiff pleads “factual content that allows the court to draw the reasonable inference that the 20 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 21 For the purposes of this analysis, a court “accept[s] factual allegations in the complaint as 22 true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek 23 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Moreover, a court 24 “presume[s] that general allegations embrace those specific facts that are necessary to support the 25 claim.” Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 256 (1994). A court is not required, 26 however, to “assume the truth of legal conclusions merely because they are cast in the form of 27 Case No.: 5:20-cv-07127-EJD 1 factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (internal 2 quotation omitted). “[C]onclusory allegations of law and unwarranted inferences are insufficient 3 to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 4 B. Vexatious Litigant 5 Federal courts may subject vexatious litigants to pre-filing orders pursuant to the All Writs 6 Act. See 28 U.S.C. § 1651(a) (“The Supreme Court and all courts established by Act of Congress 7 may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to 8 the usages and principles of law.”); see also Moy v. United States, 906 F.2d 467, 469 (9th Cir. 9 1990) (“[I]t is clear that the district court has authority to issue pre-filing injunctions pursuant to 10 28 U.S.C. § 1651.”). Such orders should not be issued lightly; they are “an extreme remedy that 11 should rarely be used.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). 12 “Courts should not enter pre-filing orders with undue haste because such sanctions can tread on a 13 litigant’s due process right of access to the courts.” Id. 14 There can come a time, though, when an abusive litigant’s right of access must be curtailed 15 by court order so as to control the type of “[f]lagrant abuse of the judicial process” that “enables 16 one person to preempt the use of judicial time that properly could be used to consider the 17 meritorious claims of other litigants.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 18 1990). This can be especially pertinent to individuals proceeding without counsel because “fewer 19 sanctions are available against a pro per litigant.” Doran v. Vicorp Rests., Inc., 407 F. Supp. 2d 20 1115, 1118 (C.D. Cal. 2005). Absent an available means of restraint, such as an order requiring a 21 litigant to obtain leave of court prior to filing documents, some cases may never come to an end. 22 The Ninth Circuit has articulated factors for district courts to examine before issuing a pre- 23 filing order: First, the litigant must be given notice and a chance to be heard before 24 the order is entered. Second, the district court must compile ‘an adequate record for review.’ Third, the district court must make 25 substantive findings about the frivolous or harassing nature of the plaintiff’s litigation. Finally, the vexatious litigant order ‘must be 26 narrowly tailored to closely fit the specific vice encountered.’ 27 Case No.: 5:20-cv-07127-EJD 1 Molski, 500 F.3d at 1057 (quoting De Long, 912 F.2d at 1147-48) (internal citations omitted). 2 III. DISCUSSION 3 A. Chase’s Request for Judicial Notice 4 In connection with its motion to dismiss, Chase requests that the Court take judicial notice 5 of the following documents: (1) Order Granting Motion to Dismiss in Neal v. First American Title 6 Insurance Co., No. 19-cv-05478, entered and filed by the Court on December 12, 2019 (RJN Ex. 7 A); (2) Excerpts from the Pooling and Servicing Agreement (“PSA”) for WaMu Mortgage Pass- 8 Through Certificates Series 2007-OA6 Trust, dated June 1, 2007 (RJN Ex. B); (3) Excerpts from 9 the asset list for WaMu Mortgage Pass-Through Certificates Series 2007-OA6 Trust (RJN Ex. C); 10 (4) Order Dismissing Appeal in Neal v. First American Title Insurance Co., No. 20-15039, entered 11 and filed August 11, 2020 (RJN Ex. E); (5) Order Sustaining Demurrer in Neal v. First American 12 Title Insurance Co., No. 19CV349019 entered and filed in the Santa Clara County Superior Court 13 on January 28, 2020 (RJN Ex. F); and (6) Docket in Neal v. First American Title Insurance Co., 14 No. 19CV349019, Santa Clara County Superior Court (RJN Ex. G). See Dkt. No. 12.3 15 Although a district court generally may not consider any material beyond the pleadings in 16 ruling on a Rule 12(b)(6) motion, the Court may take judicial notice of documents referenced in 17 the complaint, as well as matters in the public record, without converting a motion to dismiss into 18 one for summary judgment. See Lee v. City of L.A., 250 F.3d 668, 688–89 (9th Cir. 2001). A 19 matter may be judicially noticed if it is either “generally known within the territorial jurisdiction 20 of the trial court” or “capable of accurate and ready determination by resort to sources whose 21 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 22

23 3 Chase also requests that the Court take judicial notice of the complaint filed in Neal v. First 24 American Title Insurance Co., No. 19-cv-05478. As discussed above, the Court takes judicial notice of the pleadings filed in these actions.” See Fed. R. Evid. 201(b) (providing that the court 25 ‘may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be 26 questioned’); see also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006)(holding the court ‘may take judicial notice of court filings and other matters of public 27 record’). Case No.: 5:20-cv-07127-EJD 1 Here, RJN Exhibits A, D, E, F, and G are all documents filed in or addressing prior suits 2 that form the basis for Chase’s res judicata argument for dismissal. To determine whether to grant 3 a motion to dismiss on res judicata grounds, judicial notice may be taken of a prior judgment and 4 other court records. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial 5 notice of state court decision and related filed briefs for purposes of determining prior judgment’s 6 preclusive effect). RJN Exhibits B (excerpts from the PSA) and C (excerpts from the asset list), 7 both documents from administrative agencies, are also properly noticed as public records. See 8 Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Plaintiff does not oppose the Request for 9 Judicial Notice. The Court finds that all documents may properly be judicially noticed under 10 Federal Rule of Evidence 201(b) and accordingly GRANTS Chase’s request. 11 B. Motion to Dismiss 12 Chase moves to dismiss Plaintiff’s complaint on various grounds, but the Court need only 13 address one—that this action is barred by the affirmative defense of res judicata. Chase contends 14 that, under California law, this district’s dismissal with prejudice of the previous federal actions 15 bars any further litigation of the claims in this matter. Mot. at 5-7. According to Chase, Plaintiff’s 16 latest lawsuit is materially identical to his previous four suits, Neal I-IV, since the thrust of the 17 complaint is the same allegation that “assignments of the subject loan were . . . unlawfully made 18 and that due to the pretentious chain of assignments, it is now unknown and doubtful who is the 19 current lender/beneficiary/assignee with legal authority and standing regarding the mortgage on 20 [the] subject property.” Id. at 4 (citing Complaint ¶ 25); Reply at 2. Additionally, Chase argues 21 that although it was not an appearing party in Neal I-IV, the claims against Chase are still barred. 22 Contrary to Chase’s assertion, federal, not California law controls the inquiry because a 23 federal court dismissed the previous actions. Alcarmen v. J.P. Morgan Chase Bank, No. 13-CV- 24 1575, 2014 WL 3368647, at *6 (N.D. Cal. Jul. 8, 2014) (citing Wright & Miller, 18B Fed. Prac. & 25 Proc. Juris. §§ 4466, 4469 (2d ed. 2015))); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe 26 Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (applying federal law of res judicata 27 Case No.: 5:20-cv-07127-EJD 1 without note). Federal law applies a transactional theory of claim preclusion that presents three 2 elements: (1) identity of claims; (2) a final judgment on the merits of the earlier claims, and (3) 3 privity between the parties to the earlier and later proceedings. Tahoe-Sierra, 322 F.3d at 1077. 4 The Court finds that all three elements are satisfied in this case. First, claims are identical 5 when they derive from the same transactional nucleus of facts, notwithstanding any “different 6 legal labels” attached to the claims asserted. Id. at 1077–78. This includes any claims that “could 7 have been brought” in the action, regardless of whether they “were actually pursued.” U.S. ex rel. 8 Barajas v. Northrop Corp., 147 F.3d 905, 909 (9th Cir. 1998). The same transactional nucleus of 9 facts exists in this case as it did in the previous federal actions. As the Court explained in Neal III, 10 the “revocation of assignments” cause of action is at most based on an “identical issue” already 11 decided, or at least based on a primary right the Court has previously examined and determined 12 against Plaintiff in Neal I and Neal II. Neal III, 2020 WL 905942 at *4. Moreover, Plaintiff’s 13 “Declaratory Relief on Purchase and Servicing Agreement” claim alleges Chase is not the valid 14 successor of Washington Mutual. This too was a claim decided and resolved by the Court in Neal 15 I under quiet title and declaratory relief causes of action. Neal I, Dkt. No. 39 at 6:2-24; 11:14-27. 16 The legal claims are identical. Accordingly, the Court finds that the claims between this and the 17 earlier actions are identical. 18 Second, a final judgment on the merits includes a dismissal with prejudice for failure to 19 state a claim upon which relief can be granted. See Alcarmen, 2014 WL 3368647, at *8; see also 20 In re Schimmels, 127 F.3d 875, 884 (9th Cir. 1997) (“An involuntary dismissal generally acts as a 21 judgment on the merits for the purposes of res judicata[.]”). Because Neal I and Neal II were 22 resolved by a judgment in favor of defendants, following two sets of dismissals with prejudice for 23 failure to state a claim upon which relief can be granted, this element is also satisfied. 24 Third, for purposes of res judicata, privity exists not only where the parties are identical, 25 but also where there is “substantial commonality of interest” between them. Tahoe-Sierra, 322 26 F.3d at 1081. Substantial commonality of interest exists where there is a “pre-existing substantive 27 Case No.: 5:20-cv-07127-EJD 1 legal relationship,” such as an assignment of interest, Taylor v. Sturgell, 553 U.S. 880, 894 (2008), 2 or where “a non-party succeed[s] to a party’s interest in property.” In re Schimmels, 127 F.3d at 3 881. “In the context of home foreclosures . . . subsequent trustees, assignees, or assignors of a 4 mortgage are in privity with one another.” Sepehry-Fard v. Nationstar Mortg. LLC, No. 14-CV- 5 03218, 2015 WL 332202, at *13 (N.D. Cal. Jan. 26, 2015); see also Lomeli v. JPMorgan Chase 6 Bank, N.A., 2015 WL 12746210, at *6 (C.D. Cal. Oct. 5, 2015) (“In the context of home 7 foreclosures, courts have found that assignors and assignees of a mortgage are in privity with one 8 another.”) (citing cases); Lee v. Thornburg Mortg. Home Loans Inc., No. 14-CV-00602, 2014 WL 9 4953966, at *6 (N.D. Cal. Sept. 29, 2014) (finding substituted trustee and servicers of mortgage 10 loan in privity with original lender, nominee, and trustee sued in prior lawsuit); Apostol v. 11 CitiMortgage, Inc., No. 13-CV-01983, 2013 WL 6328256, at *5 (N.D. Cal. Nov. 21, 2013) 12 (assignee of deed of trust in privity with its assignor). Privity exists between Chase and the 13 defendants in Neal I-IV. 14 Because each element of claim preclusion is satisfied, the Court finds that this entire action 15 is barred by the doctrine of res judicata. Because there is no set of facts that could alter that 16 finding, the Court is compelled to dismiss the entire action with prejudice. 17 C. Vexatious Litigant 18 Having dismissed Plaintiff’s claims, the Court turns to Chase’s request that the Court enter 19 a pre-filing order barring future suits from Plaintiff related to the Property’s mortgage. It 20 discusses each of the De Long factors in turn. 21 i. Notice and Opportunity to be Heard 22 The first factor requires that the litigant be afforded an opportunity to oppose the order 23 before it is entered. De Long, 912 F.2d at 1147. “Courts in this circuit have held that a motion to 24 declare a litigant vexatious does not require oral argument.” Gavin v. City & Cty. of San 25 Francisco, Case No. 15-cv-5202-EMC, 2016 WL 126937, at *2 (N.D. Cal. Jan. 12, 2016); see 26 also Reddy v. MedQuist, Inc., No. 12-cv-1324-PSG, 2012 WL 6020010, at *3 (N.D. Cal. Dec. 3, 27 Case No.: 5:20-cv-07127-EJD 1 2012) (“The requirement that the plaintiff receive an opportunity to be heard does not require an 2 oral hearing; the opportunity to brief the issue fully satisfies due process requirements”) (internal 3 quotation omitted). 4 The first De Long factor is satisfied here because Plaintiff has filed an opposition to 5 Chase’s motion to dismiss. Dkt. No. 21. In addition, Plaintiff has been explicitly warned that a 6 continued pattern of unsuccessful filings may lead to a declaration that he is a vexatious litigant. 7 In Neal IV this Court advised Plaintiff that 8 “Plaintiff may not pursue additional litigation that recites same or similar causes of action as those already dismissed by the Court. 9 Plaintiff is advised that adding, removing, or reframing causes of actions or defendants will not save his claims. Failure to comply with 10 this instruction will result in the Court imposing a pre-filing order pursuant to 28 U.S.C. § 1651. For clarity, this means that if Plaintiff 11 brings a fifth Complaint alleging that he is excused from paying his mortgage/pleads causes of action stemming from his Calco Creek 12 mortgage, a pre-filing order pursuant to 28 U.S.C. § 1651 will be imposed. 13 Neal III, 2013 WL 622363 at *2. 14 ii. Adequate Record of Review 15 The second factor is merely procedural. See De Long, 912 F.2d at 1147 (“An adequate 16 record for review should include a listing of all the cases and motions that led the district court to 17 conclude that a vexatious litigant order was needed.”). It requires only that the court compile a list 18 of actions and filings by the litigant. See, e.g., Hurt v. All Sweepstakes Contests, No. C-12-4187- 19 EMC, 2013 U.S. Dist. LEXIS 4802, at *5, 2013 WL 144047 (N.D. Cal. Jan. 11, 2013) (finding the 20 second De Long factor met where the court “compiled a list of all the actions Plaintiff filed”). In 21 satisfaction of this factor, the Court lists each of the five actions that Plaintiff has filed in Exhibit 22 A which is attached to this order. 23 iii. Frivolous or Harassing Nature of Plaintiff’s Actions 24 Under the third factor, courts must examine “both the number and content of the filings as 25 indicia of the frivolousness of the litigant’s claims.” Molski, 500 F.3d at 1059 (quotations 26 omitted). “An injunction cannot issue merely upon a showing of litigiousness. The plaintiff’s 27 Case No.: 5:20-cv-07127-EJD 1 claims must not only be numerous, but also be patently without merit.” Id. (quotation omitted). 2 Because plaintiff has sued Chase and the other defendants multiple times on the same foreclosure 3 event, this order finds there is a sufficient basis to conclude that plaintiff’s litigation against 4 defendants has been abusive and frivolous. 5 In considering the third De Long factor—as well as the fourth (i.e., narrow tailoring of the 6 vexatious litigant order)—the Ninth Circuit has found the following considerations helpful, as 7 outlined by the Second Circuit in Safir v. U.S. Lines, Inc., 792 F.2d 19 (2d Cir. 1986):

8 “(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s 9 motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the 10 litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden 11 on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.” 12 13 Molski, 500 F.3d at 1058 (citing Safir, 792 F.2d at 24); see also Boustred v. Gov’t, No. C-08- 14 00546 RMW, 2008 WL 4287570, at *2-43, 2008 WL 4287570 (N.D. Cal. Sept. 17, 2008) 15 (considering all five Safir factors). These considerations lead the Court to the following 16 conclusions. 17 With respect to the first Safir factor, Plaintiff has filed five cases related to the foreclosure 18 of his home. See Exhibit A. While the number of filings does not itself establish Plaintiff as a 19 vexatious litigant per se, the duplicative and harassing nature of his filings do. The Court is not 20 presented here with a plaintiff who is filing the same type of action over and over again. See In re 21 Powell, 851 F.2d 427, 431 (D.C. Cir. 1988) (“[T]he district court should be careful not to conclude 22 that particular types of actions filed repetitiously, i.e., FOIA actions, in and of themselves warrant 23 a finding of harassment. Instead, the district court should attempt to discern whether the filing of 24 several similar types of actions constitutes an intent to harass the defendant or the court.”). 25 Rather, Plaintiff is filing the same factual case repeatedly. The different lawsuits filed by Plaintiff 26 may raise different named claims, but they are all based on the allegedly unlawful foreclosure of 27 Case No.: 5:20-cv-07127-EJD 1 the Property. 2 Because Plaintiff continues to bring the same factual case, in spite of repeated dismissals 3 on the merits and pursuant to the doctrine of res judicata by the Court, he is filing not only 4 duplicative lawsuits but also, necessarily frivolous and harassing ones. Given the circumstances, a 5 declaration of vexatiousness is particularly appropriate. See Broemer v. Bush, No. CV 10-05193 6 MMM (RZX), 2014 U.S. Dist. LEXIS 190424, at *23 (C.D. Cal. Feb. 6, 2014) (stating that, “[i]f a 7 litigant has a pattern of vexatious or harassing litigation, especially in derogation of the doctrine of 8 res judicata, a district court has authority under 28 U.S.C. § 1651 to enter an order sua sponte 9 enjoining the litigant from filing papers without obtaining leave of court”); Martin v. Redwood 10 City Dental Care, No. 15-CV-03151-JST, 2015 WL 9489898, at *5 (N.D. Cal. Dec. 29, 2015) 11 (“find[ing] that Martin’s conduct is harassing because she has continued to file frivolous lawsuits 12 against various defendants despite the fact that many, if not most, of her previous complaints have 13 been screened for failure to state a legally cognizable federal claim”); Sepehry-Fard v. Select 14 Portfolio Servicing, Inc., No. 14-CV-05142-LHK, 2015 WL 1063070, at *9 (N.D. Cal. Mar. 10, 15 2015) (stating that “[t]he first [Safir] factor weighs heavily in favor of declaring Plaintiff 16 vexatious” because “Plaintiff has filed at least eight lawsuits aimed at delaying nonjudicial 17 foreclosure proceedings on the two properties he owns in Saratoga, California,” “Plaintiff has not 18 prevailed in any,” and, “[d]espite repeated warnings from judges in this district that Plaintiff’s 19 meritless theory of liability has been rejected, Plaintiff continues to file lawsuits premised on the 20 same allegations”). 21 Moreover, it is unlikely that other sanctions would be adequate to protect defendants or the 22 courts because any attempt to obtain and collect monetary sanctions from a pro se litigant like 23 Plaintiff would likely increase court proceedings and the financial burdens on the defendants. Nor 24 does it seem likely, in light of the litigation history here, that nonmonetary directives would deter 25 Plaintiff from continuing to harass the defendants and from abusing judicial resources. See 26 Patterson v. Goncalves, No. C 14-01311 CRB, 2014 WL 4683222, at *4 (N.D. Cal. Sept. 19, 27 Case No.: 5:20-cv-07127-EJD 1 2014) (finding that monetary and nonmonetary sanctions would be unlikely to deter vexatious pro 2 se litigants in light of Plaintiffs’ harassing litigation history). Having considered alternative 3 sanctions, a prefiling order is warranted to deter Plaintiff’s harassing actions and the filing of 4 frivolous claims. 5 iv. Narrowly-Tailored Order 6 The final factor requires that the prefiling order be narrowly tailored to the vexatious 7 litigant’s wrongful behavior. See Molski, 500 F.3d at 1061. “Narrowly tailored orders are needed 8 ‘to prevent infringement of the litigator’s right of access to the courts.’” De Long, 912 F.2d at 9 1148 (citing Woods v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1525 (9th Cir. 10 1983)). As discussed above, Plaintiff has brought multiple suits before the Court based on 11 previously rejected facts and theories. Thus, the Court finds it appropriate to deem Plaintiff a 12 vexatious litigant and to construct a narrowly tailored prefiling order. 13 Accordingly, Plaintiff must obtain leave of court before filing any further suits based on 14 his allegations that he is excused from paying his mortgage or pleads causes of action stemming 15 from his Calco Creek Property mortgage. If Plaintiff wishes to file a complaint, he must provide a 16 copy of such complaint, a letter requesting that the complaint be filed, and a copy of this order to 17 the Clerk of the Court. The Clerk shall not accept for filing any further complaints filed by 18 Plaintiff or on behalf of Plaintiff alleging any claims described herein until the complaint has first 19 been reviewed by the general duty judge of this Court and approved for filing. 20 The Court cannot find authority to bar Plaintiff from suing the defendants in other districts 21 or state court, but if he does so on the same matters already barred, defendants should bring this 22 order to the attention of the supervising judge. 23 IV. CONCLUSION 24 For the foregoing reasons, the Court hereby GRANTS Chase’s motion to dismiss and 25 DISMISSES WITH PREJUDICE. Plaintiff is hereby DECLARED a vexatious litigant and is 26 ORDERED to comply with the re-filing restrictions described above. 27 Case No.: 5:20-cv-07127-EJD 1 The Clerk shall close this file. 2 IT IS SO ORDERED. 3 Dated: February 25, 2021 4 EDWARD J. DAVILA 5 United States District Judge 6 7 8 9 10 11 a 12

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Zz 18 19 20 21 22 23 24 25 26 27 Case No.: 5:20-cv-07127-EJD 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DECLARING PLAINTIFF A VEXATIOUS LITIGANT