Szanto v. Bank of New York

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PETER SZANTO, Case No.: 22-CV-1857 TWR (DEB)

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO STRIKE THE COUNTY OF SAN DIEGO’S 14 BANK OF NEW YORK, MOTION FOR ORDER VACATING aka Bank of New York Mellon Trust, 15 AND SETTING ASIDE DEFAULT aka BNY Mellon, JUDGMENT DIRECTING THE 16 Defendant. COUNTY OF SAN DIEGO 17 RECORDER TO EXPUNGE PREVIOUSLY RECORDED 18 DOCUMENTS 19 (ECF No. 37) 20

21 On July 17, 2023, the Court granted Plaintiff’s request for default judgment against 22 Defendant Bank of New York and ordered “the San Diego County Recorder to expunge 23 the following recorded instruments regarding the Subject Property, 4484 Dulin Place, 24 Oceanside, California, 92057: the Assignment of Trust Deed (DOC# 2020-0248104, 25 recorded May 15, 2020), the Notice of Trustee’s Sale (DOC# 2022-0436985, recorded 26 Nov. 15, 2022), and the Notice of Default and Election to Sell Under Deed of Trust (DOC# 27 2021-0777114, recorded Nov. 9, 2021) (the “Expunged Documents”).” (See generally 28 ECF Nos. 32 (Order), 33 (Default Judgment).) On August 7, 2023, the County of San 1 Diego (the “County”) filed a Motion for Order Vacating and Setting Aside Default 2 Judgment Directing the County of San Diego Recorder to Expunge Previously Recorded 3 Documents (the “County’s Mot.,” ECF No. 35), which is noticed for a hearing on 4 October 12, 2023, on the grounds that “the Recorder cannot remove any previously 5 recorded documents or alter its index and would be subject to damages under state law if 6 it were to do so.” (See id. at 2.) 7 Presently before the Court is Plaintiff Peter Szanto’s Motion Asking to Strike San 8 Diego County’s Scandalous First Filing/Pleading to Set Aside (“Pl.’s Mot.,” ECF No. 37), 9 which was filed on August 21, 2023, in response to the County’s Motion. Plaintiff seeks 10 “[e]xpedited [c]onsideration” on “an emergency basis” of his Motion, (see Pl.’s Mot. at 11 1–2, 13–15), because the County Recorder’s “delay [in expunging the Expunged 12 Documents] . . . causes damages to Plaintiff ([e.g.], by delaying clearing of cloud over title 13 of record and thus hampering any possibility of sale / rental without read of foreclosure.” 14 (See id. at 2.) Plaintiff also seeks “a fine of $10,000 per day for failure to expunge [the 15 documents] in [the Court’s July 17, 2023] ORDER; increasing to $50,000 per day after the 16 first 3 days with further rapid increases until the expungement is complete.” (See id. at 17 16.) 18 Plaintiff’s Motion is brought pursuant to Federal Rule of Civil Procedure 12(f), 19 which allows the court to “strike from a pleading an insufficient defense or any redundant, 20 immaterial, impertinent, or scandalous matter.” “The function of a [Rule] 12(f) motion to 21 strike is to avoid the expenditure of time and money that must arise from litigating spurious 22 issues by dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 23 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 24 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994)). “[M]otions to strike should 25 not be granted unless it is clear that the matter to be stricken could have no possible bearing 26 on the subject matter of the litigation.” Colaprico v. Sun Microsys., Inc., 758 F. Supp. 27 1335, 1339 (N.D. Cal. 1991). 28 / / / 1 As an initial matter, the Court notes that Rule 12(f) applies only to “pleading[s],” 2 which, as Plaintiff himself recognizes, (see Pl.’s Mot. at 1 n.1), the Federal Rules of Civil 3 Procedure define as comprising: 4 (1) a complaint; 5 (2) an answer to a complaint; 6 (3) an answer to a counterclaim designated as a counterclaim; 7 (4) an answer to a crossclaim; 8 (5) a third-party complaint; 9 (6) an answer to a third-party complaint; and 10 (7) if the court orders one, a reply to an answer. 11 See Fed R. Civ. P. 7(a); see also Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 12 (9th Cir. 1983) (“Under the express language of . . . [R]ule [12(f)], only pleadings are 13 subject to motions to strike.”). A court therefore “fails to comply with the policies 14 underlying [Rule] 12(f)” and errs in striking a motion for post-judgment reconsideration 15 “[s]ince the function of a 12(f) motion to strike is to avoid the expenditure of time and 16 money that must arise from litigating spurious issues by dispensing with those issues prior 17 to trial.” See Sidney-Vinstein, 697 F.2d at 885–86 (citing Anchor Hocking Corp. v. 18 Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976); A. J. Moore, Moore’s 19 Federal Practice ¶ 12.21[l] (1982)). Because it is directed to a post-judgment motion rather 20 than a pleading, the Court necessarily DENIES Plaintiff’s Motion. 21 Further, although Plaintiff makes reference to the Rule 12(f) standard, (see Pl.’s Mot. 22 at 2), his challenges only conclusorily touch upon it. (See, e.g., id. at 12 (“As stated earlier, 23 the scandal thus becomes County Counsel thereafter seeking to intermeddle in this case 24 without first seeking it to be reopened (nor making a showing of San Diego County having 25 some stake in the outcome which demonstrates a need for reopening.” (emphasis in 26 original)).) Instead, Plaintiff’s arguments appear to go to the merits of the County’s 27 Motion. For example, Plaintiff contends that (1) the County failed to move to reopen this 28 case, (see Pl.’s Mot. at 3–4); (2) the County has no standing to bring its Motion, (see id. at 1 || 4—6); and (3) the County’s arguments are not supported by the law, (see id. at 6-12). Such 2 ||merits-based arguments are appropriately raised in Plaintiff's opposition, which is due on 3 before September 7, 2023. (See ECF No. 36.) The Court therefore DENIES □□□□□□□□□□□ 4 Motion on the alternative and independent basis that Plaintiff has failed to establish that 5 ||the County’s Motion contains “any redundant, immaterial, impertinent, or scandalous 6 || matter.” 7 For the above reasons, the Court concludes that Plaintiff has failed to establish that 8 ||he is entitled to the relief he seeks under Rule 12(f). The Court therefore DENIES 9 || Plaintiffs Motion (ECF No. 37). Because Plaintiff's Motion responds timely and 10 || substantively to the County’s Motion, the Court will construe Plaintiff's Motion as his 11 || opposition to the County’s Motion if Plaintiff wishes to stand on the arguments raised 12 || therein; however, if Plaintiff wishes to file an alternative or supplemental memorandum in 13 || opposition to the County’s Motion, such response must be filed on or before September 7, 14 2023, as originally ordered in the Court’s August 8, 2023 Order Setting Briefing Schedule 15 || (ECF No. 36). 16 IT IS SO ORDERED. 17 || Dated: August 31, 2023 — 18 [ odd (2 re 19 Honorable Todd W. Robinson United States District Judge 20 21 22 23 24 25 26 27 28