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Case 5:12-cv-00640-CJC-FFM Document 21

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RICHARD IVAR RYDSTROM, ESQ. CSBN: 147470 rlawnow@gmail.com RYDSTROM LAW OFFICE 4695 MacArthur Court 11th Floor Newport Beach, Ca 92660 949.678.2218 (Tel) | 949.606.9716 (Fax) www.RydstromLaw.Com Attorney for Plaintiff OPHELIA GEORGIEV ROOP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OPHELIA GEORGIEV ROOP Plaintiff, vs. CITIMORTGAGE INC., KAISER FEDERAL BANK; CITI RESIDENTIAL LENDING INC.; CR TITLE SERVICE, INC. Does 1 to 100, Inclusive Defendants. Case NO.: EDCV12-00640 CJC (FFMx) PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS CITIMORTGAGE, INC., CR TITLE SERVICES, INC., AND CITI RESIDENTIAL LENDING, INC.S NOTICE OF MOTION AND MOTION TO STRIKE Date: July 9, 2012 Time: 1:30 p.m. Courtroom: 9B Judge: Hon. Cormac J. Carney FAC Filed: March 23, 2012

ALL PARTIES AND THEIR ATTORNEYS TAKE NOTICE:


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OPHELIA GEORGIEV ROOP, an individual, (PLAINTIFF) hereby opposes the DEFENDANTS CITIMORTGAGE, INC., CR TITLE SERVICES, INC., AND CITI RESIDENTIAL LENDING, INC.S NOTICE OF MOTION AND MOTION TO STRIKE (hereinafter DEFENDANTS). As a preliminary matter, the motion to strike is untimely and should be striken on that basis alone. Dated: June 7, 2012 __________________________ By: Richard Ivar Rydstrom, Esq.

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TABLE OF CONTENTS I. INTRODUCTION...1 II. ARGUMENT..2 a. Defendants Motion to Strike is in Violation of FRCP 12(f) as it is Untimely..2 b. Plaintiffs FAC Does Contain Specific Factual Allegations of Malice As Conceded to by Defendants in its Speaking Motion ....3 c. Plaintiff is entitled to Recover Punitive Damages Where Fraud is Proven at Trial ..4 d. Plaintiffs Complaint Does Contain Specific Factual Allegations of Tortious Breach by Common Plan & Scheme to Defraud, and Aiding & Abetting by Defendants ...9 e. Plaintiff Is Entitled to Attorneys Fees and Treble Damages & Expressly so in Connection With the UCL Claim ...10 f. Plaintiff Is Entitled to Emotional Distress Damages..13 g. Plaintiff Can Add a New Cause of Action When (1) the Claims Relate Back to the Original Complaint; and (2) the New Cause of Action is Within the Scope of the Order Granting Leave to Amend.13 III. CONCLUSION.17

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TABLE OF AUTHORITIES United States Court of Appeals Cases Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 573 (7th Cir. 2006)..14 Wigod v. Wells Fargo Bank, N.A. No. 11-1423; 2012 WL 727646 (7th Circuit, Ill Mar. 7 2012)7 United States District Court Cases Ansanelli v. J.P. Morgan Chase Bank, N.A., No. C 10-03892 WHA, 2011 WL 1134451 (N.D. Cal. Mar. 28, 2011)6 InQuote Corp v. Cole, No. 99-cv-6232, 2000 WL 1222211 (N.D. Ill. Aug. 24, 2000)..7 Ortega v. HomEq Servicing, No. CV 09-02130, 2010 WL 383368 (C.D. Cal. Jan. 25, 2010)..11 State Supreme Court Cases Mirkin v. Wasserman 5 Cal.4th 1082 (1993).8 Prentice v. North Amer. Title Guar. Corp. 59 Cal.2d 618 (1963).1, 8, 12 State Court of Appeals Cases
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Boschma v. Home Loan Center, Inc., 198 Cal.App. 4th 230 (2011)8 Ferraro v. Pacific Fin. Corp. 8 Cal.App.3d 339 (1970) ..3, 8, 12 Ford Motor Co. v. Home Ins. Co. 116 Cal.App.3d 374 (1981) 8 Golden v. Dungan (1971) 20 Cal.App.3d 295.13 Harris v. Atlantic Richfield Co., 14 Cal. App. 4th 70 (Cal. App. 5th Dist. 1993)..9 Harris v. Wachovia Mortgage, FSB, 185 Cal. App.4th 1018 (2010)16 Patrick v. Alacer Corp., (2008) 167 Cal.App.4th 995.15, 16 Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, 195 Cal. App. 4th 265 (Cal. App. 4th Dist. 2011)14 Slaughter v Legal Process 162 Cal.App. 3d 1236 (1984)1, 13 Sumner Hill Homeowners Association, Inc. v. Rio Mesa Holdings, LLC, 205 Cal.App.4th 999 (2012)..1, 5, 10 Other Cases Hadley v. Baxendale (1854) 9 Ex Ch 341..1, 10
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Statutes & Treaties 15 U.S.C. 1692 et seq....14, 15 CA Business & Professions Code 17082.1, 13 CA Civil Code 1788 et seq.1, 15 CA Civil Code 3294 et seq4, 8, 16 FDCPA 813 et seq.15 FRCP 12(f)2 Chapter I: MHA Handbook v3.3...................7

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MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION: Defendants concede that plaintiff was on medicationand didnt recall relating specific financial information to [CMI] as she was drugged. (emphasis added) (Motion to Strike, at pg. 4, lines 11-27). Plaintiffs FAC alleges facts and inferences drawn therefrom demonstrating intentional, malicious, fraudulent, oppressive or despicable conduct that is carried with a willful disregard of Plaintiffs rights by Defendants. Plaintiffs FAC alleges a common plan and scheme to defraud Plaintiff (FAC page 2, 2). Plaintiff has sufficiently alleged clear and convincing facts to support Plaintiffs claim for punitive damages and attorney fees. Moreover, Plaintiff has

sufficiently alleged Defendants conduct as oppressive and fraudulent, entitling Plaintiff to punitive damages. Plaintiff is also entitled to attorneys fees under by statute and common law, including but not limited to the UCL (B&P 17082), CC 1788 et seq., for slander of title cause of action (Sumner Hill Homeowners Association, Inc. v. Rio Mesa Holdings, LLC, 205 Cal.App.4th 999, 1028 (2012)), as a natural and foreseeable consequence of a breach (Hadley v. Baxendale, (1854) 9 Ex Ch 341 ), and to defend an action for the tort of another (Prentice v. North Amer. Title
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Guar. Corp. (1963) 59 Cal.2d 618, 619-621). Plaintiff is also entitled to emotional distress damages for all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. (Slaughter v Legal Process 162 CA 3d 1236, 1252). Finally, Plaintiff can add new causes of action to its First Amended Complaint (FAC) because the claims relate back to the pro pers original complaint, and the new causes of action are within the scope of the order granting leave to amend. II. ARGUMENT a. Defendants Motion to Strike is in Violation of FRCP 12(f) as it is Untimely: Defendants motion to strike should be overruled because Defendants waived their right to file a Motion to Strike, because it is untimely, and in violation of FRCP 12(f); which states the following: (f) MOTION TO STRIKE. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Defendants admit in its Notice of Removal (pg. 2, 2) that Defendants were served with Plaintiffs First Amended Complaint (FAC)
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on March 27, 2012, thus requiring Defendants to file its motion to strike no later than 21 days thereafter, which would be no later than April 17, 2012. Defendants waived their right to move for an order to strike portions of Plaintiffs FAC by failing to comply with the FRCP. Defendants did not have leave or permission to file its motion to strike. Thus, this court should overrule Defendants motion to strike on this ground alone. b. Plaintiffs FAC Does Contain Specific Factual Allegations of Malice As Conceded to by Defendants in its Speaking Motion: Plaintiffs FAC and allegations are sufficient to support a prayer for punitive damages. "[T]he determination whether such damages should be awarded, and if so, the amount, is the exclusive function of the trial jury." (Ferraro v. Pacific Fin. Corp. (1970) 8 Cal.App.3d 339, 351. (Emphasis Added). Plaintiffs FAC does allege facts demonstrating intentional,

malicious, fraudulent, oppressive or despicable conduct that is carried with a willful disregard of Plaintiffs rights by Defendants. Plaintiffs FAC alleges a common plan and scheme to defraud Plaintiff by Defendants (FAC page 2, 2). In its speaking motion (at page 4, lines 11-27), Defendants concede that plaintiff was on medicationand didnt recall relating specific financial information to [CMI] as she was drugged. (emphasis added) Defendant
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fails to offer a cohesive argument as to why they are citing these facts. The only inference that can be drawn from Defendants unknown defense theory is that it supports Plaintiffs claim that Defendants wrongful conduct continued after it knew of Plaintiffs medical and weakened condition. Defendants continuation of its common plan and scheme to defraud Plaintiff out of her opportunity (and promises of) a HAMP and non hamp modification was malicious, oppressive and fraudulent. Defendants failed to truthfully inform Plaintiff that she had a right to dispute the HAMP denial and request reevaluation of corrected financial data. Defendants took unfair advantage of Plaintiff while she was under medication for her injuries as she was then unable to give or communicate financial information. Plaintiff is entitled to plead and prove at trial, punitive damages. Defendants failure to truthfully disclose to Plaintiff her HAMP rights in disputing a denial, failure to honor the trial period agreement and failure to honor its promises of a permanent modification (FAC Page 5, 12; Page 6, 16) were reckless, malicious, and outrageous, and unfair, and fraudulent business practices in California (B&P 17,200, 17,203, 17500 [disseminating false (HAMP and public records) real estate information]). Defendants wrongful conduct caused Plaintiffs emotional and physical injuries and damages.
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These are

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issues of fact for a jury. c. Plaintiff is entitled to Recover Punitive Damages Where Fraud is Proven at Trial: Intentional concealment of material fact provides an evidentiary basis upon which punitive damages may be awarded. CAL. CIV. CODE 3294(b)(3). Defendants acted with fraud, and thus, punitive damages may be recovered where fraud is proven by clear and convincing evidence (CAL. CIV. CODE 3294(a)). Punitive damages are not limited to affirmative misrepresentations. Each and all of Defendants' conduct is alleged as

malicious, reckless, and proximately caused the emotional and physical injuries and damages of Plaintiff as Plaintiff has alleged that each and all acted in a common plan and scheme to defraud Plaintiff (FAC page 3, para. 5; page 11, para 40; page 22, para 62; plus at: Cause #1 pg 24 Para 70, 71, 72, 109, 110; Cause #5 at Para 146, 149, 150; Cause #6 at Para 154, 155, 158, 159; Cause #10 Para 208; Cause #12 at Para 223; Cause #13 Para 229; Cause #15 Para 250; Cause #17 Para 267. Plaintiffs complaint alleges that she was defrauded beginning on or about March 2009 when she applied for a HAMP loan modification (FAC, pg. 4, 9). The FAC includes allegations of many specific incidents of promises made by named employees (including but not limited to (1) Patti Booker, (2) Ted; (3) Maurice; (4) Angela Watkins, (5) Jackie, (6) Diane, and
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(7) John North) of CitiMortgage, who are alleged to have authority and capacity to act as employees on behalf of Defendants (FAC pg. 3, 4; pg. 5, 13). That the complaint does not name the employees titles or some other detail is of no moment. The authority of the speakers is alleged to be their employment by defendant. Ansanelli v. J.P. Morgan Chase Bank, N.A., No. C 10-03892 WHA, 2011 WL 1134451, at 4 at Section D, Fraud and Deceit and or Negligent Misrepresentation (N.D. Cal. Mar. 28, 2011) (Ansanelli). The FAC alleges specific verbal misrepresentations made by Patti Booker, Ted, and Maurice of CitiMortgage to Plaintiff, including that if Plaintiff complied with the terms of the Trial Period Plan, CitiMortgage would modify her mortgage loan, and send her a permanent modification so that she can avoid foreclosure (FAC, pg. 6, 16). Ted specifically told Plaintiff that if she would make another three (3) payments in a reduced amount of $1338.81 with the initial payment due on August 16, 2009, and ending on October 16, 2009, she would receive the written agreement for the permanent Making Home Affordable (HAMP) loan modification contract for her signature in October 2009 (FAC, pg. 6, 16). Then again, on or about September 2009, Maurice of CitiMortgage told Plaintiff over the telephone that the agreement for the permanent loan modification has been
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sent to her (FAC, pg. 6, 18). All these representations were false, and the FAC alleges that Defendants did not intend to perform at the time the representations were made (FAC, pg. 35, 113). The FAC also includes allegations of when such misrepresentations were made, including but not limited to on or about 04/2009, 07/2009, 09/2009 (FAC, pg. 5, 12; pg. 6. 16, 18). The verbal misrepresentations made to Plaintiff were made

knowingly with the intent to defraud because Defendant knew or should have known that Defendants investor, Kaiser Federal Bank, did not participate in HAMP under its Pooling & Servicing Agreements (SPA). (FAC, pg. 2, 2). 1.3 Investor Solicitation Within 90 days of executing a SPA, the servicer must review all servicing agreements to determine investor participation in HAMP. (Emphasis Added) [Chapter I: MHA Handbook v3.3 18] Moreover, Plaintiff alleges that she was deliberately misled into believing that Defendant CitiMortgage would permanently modify her mortgage, but refused to honor its promises. (FAC, pg. 35, 113). Additionally, justifiable reliance exists when it was reasonable for plaintiff to accept defendants statements without an independent inquiry or investigation. Wigod v. Wells Fargo Bank, 7th Circuit; 2012 WL 727646,
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No. 11-1423; Mar. 7 2012, at *13[26][27] (Wigod 2012); citing InQuote Corp v. Cole, No. 99-cv-6232, 2000 WL 1222211, at 3 (N.D. Ill. Aug. 24, 2000). Here, Plaintiff alleged reliance when it was reasonable for Plaintiff to accept Defendants statements that it would send her the promised permanent modification. (FAC pg. 30-31, 89-91). Moreover, had

Plaintiff known of these false promises, Plaintiff would have behaved differently (i.e. take the path of efficient breach and default immediately rather than executing the Trial Period Plans and making trial payments; obtaining a co-signer, a takeout refinance loan, a partial claim, or an immediate foreclosure or short sale, which would have enabled Plaintiff to preserve her cash and seek less expensive living arrangements).1 Defendant

Reliance can be proved in a fraudulent omission case by establishing that had the omitted information been disclosed, [the plaintiff] would have been aware of it and behaved differently. (Boschma v. Home Loan Center, Inc., 198 Cal.App. 4th 230, 250; citing Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23 Cal. Rptr. 2d 101, 858 P.2d 568]). "A person who, through the tort of another, has been required to act in the protection of his interest by bringing or defending an action against a third party, is entitled to recover compensation for loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 619-621). "[T]he determination whether such damages should be awarded, and if so, the amount, is the exclusive function of the trial jury." (Ferraro v. Pacific Fin. Corp. (1970) 8 Cal.App.3d 339, 351. "Non-intentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result." (Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d 374. 8
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CitiMortgage acted with the intent to induce Plaintiffs reliance when CitiMortgage knew the statements to be false, and made these false representations to deceive Plaintiff and induce Plaintiff to become delinquent in her payments. For these reasons, Plaintiffs allegations plead facts sufficient to show that the Defendants acted with oppression, fraud, or malice pursuant to Code of Civil Procedure 3294, and therefore Plaintiffs allegations support a request for punitive damages. d. Plaintiffs Complaint Does Contain Specific Factual Allegations of Tortious Breach by Common Plan & Scheme to Defraud, and Aiding & Abetting by Defendants: The most widely recognized exception to the general rule that punitive damages for breach of contract is unavailable: is when the defendant's conduct constitutes a tort as well as a breach of the contract. For example, when one party commits a fraud during the...performance, the injured party may recover in contract and tort. Harris v. Atlantic Richfield Co., 14 Cal. App. 4th 70, 78 (Cal. App. 5th Dist. 1993). The gravamen of Plaintiffs FAC is tortious. Defendants acted in a common plan and scheme to defraud Plaintiff by Defendants (FAC page 2, 2), and committed fraud to breach the TPP contract. Moreover, Defendants knew of each others fraudulent acts, and provided substantial assistance to achieve the desired unlawful result, thereby aiding and abetting the
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common plan and scheme to defraud (FAC page 11, 41).

For these

reasons, punitive damages are available to Plaintiff as the gravamen of Plaintiffs claims are based in fraud. e. Plaintiff Is Entitled to Attorneys Fees and Treble Damages and Expressly so in Connection With the UCL Claim: Plaintiff is entitled to attorneys fees and treble damages in her cause of action for violation of the UCL. Pursuant to CA CC 1780(e) and B&P 17082, Plaintiff shall be awarded a reasonable attorneys fee together with the costs of suit. The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section. (CC 1780(e)) In any action under this chapter, it is not necessary to allege or prove actual damages or the threat thereof, or actual injury or the threat thereof, to the plaintiff. But, in addition to injunctive relief, any plaintiff in any such action shall be entitled to recover three times the amount of the actual damages, if any, sustained by the plaintiff, as well as three times the actual damages, if any, sustained by any person who has assigned to the plaintiff his claim for damages resulting from a violation of this chapter. In any action under this chapter in which judgment is entered against the defendant the plaintiff shall be awarded a reasonable attorney's fee together with the costs of suit.. (B&P 17082) Moreover, pursuant to Hadley v. Baxendale, Plaintiff is entitled damages that are naturally flowing from Defendants breach of contract,
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which includes attorneys fees. (1854) 9 Ex Ch 341. Attorneys fees are within the reasonable contemplation of the parties at the time of contracting, and such damages are naturally flowing from this type of breach. Defendants knew that their breach would cause Plaintiff to lose out on a permanent modification and cause threats of wrongful foreclosure against Plaintiffs property, resulting in Plaintiff having to hire legal counsel to protect her rights. Attorneys fees are also recoverable damages in a slander of title cause of action. Sumner 205 Cal.App.4th at 1028. Plaintiff has sufficiently alleged that the publication of a recorded instrument "caused actual pecuniary damage in the form of expense for measures reasonably necessary to counteract the publication, including litigation expenses to remove the doubt cast upon [plaintiffs'] property rights. Sumner 205

Cal.App.4th at 1028. Additionally, Plaintiff may recover costs, including attorneys fees, pursuant to CA Civil Code 1032. Furthermore, Plaintiffs FAC alleges that Defendants violated CC 1788 et. seq. by failing to comply with several of the restrictions placed on debt collectors in 15 U.S.C. 1692 et seq. Plaintiff also seeks the remedies specified in 15 U.S.C. 1692k as the California statute (CC 1788.17) permits her to do so. California Civil Code 1788.17 states that:
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[n]otwithstanding any other provision of this title, every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code. See CA Civil Code 1788.17; see also Ortega v. HomEq Servicing, No. CV 09-02130, 2010 WL 383368 at *5 (C.D. California, Jan. 25, 2010). [Emphasis Added] Section 1692k borrows remedies from the FDCPA and expressly incorporates them into the state statutory Rosenthal cause of action, allowing Plaintiff to seek: any actual damage (FDCPA 813(a)(1)); in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000 (FDCPA 813(a)(2)(A)); and the costs of the action, together with a reasonable attorneys fee as determined by the court (emphasis added) (FDCPA 813(a)(3)). Moreover, "[a] person who, through the tort of another has been required to act in the protection of his interest by bringing or defending an action against a third party, is entitled to recover compensation for loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Emphasis Added) (Prentice, 59 Cal.2d at 619-621). "[T]he determination of whether such damages should be awarded, and if so, the amount, is the exclusive function of the trial jury." (Ferraro 8 Cal.App.3d at 351.
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Defendants'

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conduct was tortious as defendants committed fraud, and acted maliciously, recklessly, and proximately caused the emotional and physical injuries and damages of Plaintiffs. Plaintiff is entitled to attorneys fees as Plaintiff was damaged by having to expend attorneys fees and costs in order to prevent the tort (wrongful foreclosure / set aside and enjoin foreclosure) of another. f. Plaintiff Is Entitled to Emotional Distress Damages: [A]ll highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea are recoverable damages. (Golden v. Dungan (1971) 20 Cal.App.3d 295, 311). Plaintiff is entitled to compensatory damages, (CC 3333), punitive damages (Civ.Code, 3294), past, present and future medical and long-term care costs and expenses (Slaughter 162 CA 3d at 1252), and other damages to be proven at trial. Plaintiff suffers pain and suffering, and damages including but not limited to past present and continuing medical and treatment expenses, loss of earnings, loss of capacity, extreme emotional distress causing extreme emotional stress and physical injuries, medical and prescription expenses, and medical doctor treatment and such on-going care, and other damages and injuries as

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outlined herein, including treble damages, attorney fees, loss, delay or impairment of careers, etc. (FAC, pg. 63, 222-223). g. Plaintiff Can Add a New Cause of Action When (1) the Claims Relate Back to the Original Complaint; and (2) the New Cause of Action is Within the Scope of the Order Granting Leave to Amend: Pursuant to Court Order (Minute Order 02/23/2012), Plaintiff amended her complaint and added new causes of actions that related back to the original complaint. Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, 195 Cal. App. 4th 265, 267 (Cal. App. 4th Dist. 2011). An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. Id. The criterion of relation back is whether the original complaint gave the defendant enough notice of the nature and scope of the plaintiff's claim that he shouldn't have been surprised by the amplification of the allegations of the original complaint in the amended one. (Santamarina v. Sears, Roebuck & Co., 466 F.3d 570,

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573 (7th Cir. 2006)). Under these principles, the First Amended Complaint (FAC) related back to the original complaint. The original complaint (OC) specifically referenced Defendants alleged violations of CA foreclosure laws (OC Page 11-16) and HAMP standards (OC Page 5, 10 alleging according to MHA (HAMP Regulations) Supplemental Directives; OC Page 2, 2; OC Page 4, 10). As such, the Defendants could have reasonably foreseen the later allegations of negligence (per se) and violations of the Rosenthal Act Civil Code 1788 et seq. for collection of a debt in a false, deceptive, misleading, unfair, or unconscionable manner. The OC further alleged a common plan and scheme (OC Page 8, 21, 23; Page 17, 51, 52; Page 18, 57), and therefore Defendants could have foreseen later allegations for Conspiracy to Defraud. Moreover, the OC alleges causes of action for wrongful

foreclosure, breach of written contract, slander of title, and fraud, etc., all of which the Defendants could have reasonably foreseen the later allegations of breach of covenant of good faith and fair dealing, violation of the Rosenthal Act, Violation of the Consumer Legal Remedies Act, and negligence (per se). All added causes of action were based on the same general sets of facts, involved the same injury, and referred to the same instrumentality.
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Case 5:12-cv-00640-CJC-FFM Document 21

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Moreover, Plaintiff added more detail per the courts order, which arose under the same transaction and occurrence of the original claims. The order did not restrict the amended pleading, and did not preclude Plaintiff from alleging a new cause of action. Thus, striking the added causes of action in its entirety would be improper. Furthermore, Plaintiff may amend her complaint to add the following causes of action because the new causes of action directly respond to the Courts reason for sustaining the demurrer. (Patrick v. Alacer Corp., (2008) 167 Cal.App.4th 995, 1015). The Plaintiff may amend the complaint where the new cause of action is within the scope of the order granting leave to amend. (Harris v. Wachovia Mortgage, FSB, (2010) 185 Cal. App.4th 1018, 1023). The court noted that certain actions were not alleged against certain defendants and requested more factual detail concerning the events. In Patrick v. Alacer Corp., the court reasoned that the new declaratory relief cause of action added by Plaintiff in her third amended complaint supported her standing claim, which directly responded to the courts reason for sustaining the earlier demurrer. Similarly, the new causes of action added by Plaintiff in her FAC supported the courts request for additional facts to state a claim under the UCL. Moreover, Plaintiff is
16 PLAINTIFFS OPPOSITION TO MOTION TO STRIKE EDCV12-00640-CJC (FFMx)

Case 5:12-cv-00640-CJC-FFM Document 21

Filed 06/08/12 Page 23 of 24 Page ID #:875

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obligated to allege additional theories on the same facts and occurrences, as it did in amending the pro pers original complaint. It is proper to allege these new theories to avoid waiver. Thus, this court should not strike the added causes of action. III. CONCLUSION:

Plaintiff respectfully requests that this Court overrule the Defendants Motion to Strike, because Plaintiff has in fact alleged sufficient facts to request punitive damages and attorneys fees.

_________________________
By: Richard Ivar Rydstrom, Esq. Attorney for Plaintiff

17 PLAINTIFFS OPPOSITION TO MOTION TO STRIKE EDCV12-00640-CJC (FFMx)

Case 5:12-cv-00640-CJC-FFM Document 21

Filed 06/08/12 Page 24 of 24 Page ID #:876

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PROOF OF SERVICE ATTACHMENT STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of ORANGE, State of California. I am over the age of 18 and am not a party to the within action. On june 7 2012 I served the document described as PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS CITIMORTGAGE, INC., CR TITLE SERVICES, INC., AND CITI RESIDENTIAL LENDING, INC.S NOTICE OF MOTION AND MOTION TO STRIKE on each interested party, as follows: ERIC EVERETT HAWES KELLY ANDREW BEALL State Bar No. 135514 State Bar No. 162456 PEREZ & HAWES LLP DAMIAN P. RICHARD 21300 Victory Boulevard State Bar No. 262805 Suite 820 WOLFE & WYMAN LLP Woodland Hills, CA 91367 2301 Dupont Drive, Suite 300 (818) 884-3991 Phone Irvine, CA 92612-7531 (949-)475-9200 [X] BY MAIL: as follows: [X] FEDERAL I deposited such envelope in the U.S. Mail at Orange County California, with postage thereon fully prepaid. I am readily familiar with the firms practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter sate is more than one day after the date of deposit for mailing in affidavit. [X] BY ELECTRONIC ACCESS: Purusant to Electronic Filing Court Order, I hereby certify that the above document(s) was uploaded to the Roop v. CitiMortgage, Inc., et al. website and will be posted on the website by the close of the next business day and the webmaster will give e-mail notification to all parties. [] BY CERTIFIED MAIL as follows: I am readily familiar with Rydstrom Laws practice for the collection and processing of correspondence for mailing with the United States Postal Service; such envelope will be deposited with the United States Postal Service on the above date in the ordinary course of business at the business address shown above; and such envelope was placed for collection and mailing, by Certified United States Mail, Return Receipt Requested, on the above date according to Rydstrom Laws ordinary business practice. [] BY PERSONAL SERVICE as follows: I caused a copy of such document(s) to be delivered by hand to the offices of the addressee between the hours of 9:00 A.M. and 5:00 P.M. [] BY OVERNIGHT COURIER SERVICE as follows: I caused such envelope to be delivered by overnight courier service to the offices of the addressee. The envelope was deposited in or with a facility regularly maintained by the overnight courier service with delivery fees paid or provided for. [] BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number of the addressee listed above, by use of facsimile machine telephone number. The facsimile machine used compiled with California Rules of Court, Rule 2004 and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), a transmission record of the transmission was printed. Executed on date first referenced above, at Orange / Los Angeles County, California. [] STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [X] FEDERAL: I declare that I am employed in the offices of a member of the State Bar of this Court at whose direction the service was made. __________________________________________ (Signature)

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