Bryant v. Wells Fargo et al

Filing 15

ORDER RE: MOTION TO DISMISS AND MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT, signed by District Judge Anthony W. Ishii on 12/15/2017. (Case Closed)(Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARY J. BRYANT,

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Plaintiff

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CASE NO. 1:16-CV-1628 AWI MJS
ORDER RE: MOTION TO DISMISS
AND MOTION TO DECLARE
PLAINTIFF A VEXATIOUS LITIGANT

v.
WELLS FARGO, TAMMY JOHNSTON,
AVEDIAN PROPERTIES,
Defendants

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(Docs. 5 and 8)

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I. Background

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This case arises out of a home foreclosure.1 Plaintiff Mary Bryant’s parents, Donald and

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Martha Cary owned the house at 3143 Brickfield Avenue in Tulare, CA. In 2007, they borrowed

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proximately $195,000 from World Savings2 secured by a deed of trusty on that property. They

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fell behind on their payments and a notice of default was recorded in 2012. Donald Cary passed

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away in 2008. Martha Carey passed away on August 17, 2014. Before she passed away, Martha

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Carey signed a grant deed to transfer the property to Plaintiff as the trustee of the “Martha Jayne

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Cary Living Trust Under a Trust Dated January 11, 2014.” Plaintiff recorded that grant deed on

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September 9, 2014. Meanwhile, a notice of sale was recorded on June 5, 2014.

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Plaintiff filed the first Chapter 7 bankruptcy on April 27, 2015. This bankruptcy was
dismissed on May 8, 2015 for failure to file schedules. Plaintiff filed the second Chapter 7

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The facts of this case are taken from Defendants’ documents. Plaintiff is pro se; her filings are not clear and contain
only fragmentary details of the dispute. Defendants’ recitations of the events appear to be consistent with the limited
information Plaintiff has provided.
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World Savings changed its name to Wachovia Mortgage and later merged with Wells Fargo Bank.

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bankruptcy on May 18, 2015. This second bankruptcy was dismissed on September 11, 2015;

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Plaintiff failed to appear at a Section 341(a) meeting. The trustee, Cal-Western Reconveyance,

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sold the property to Wells Fargo on May 7, 2015, apparently without notice of the bankruptcy

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filing. The trustee’s deed upon sale was not recorded until July 19, 2016, after the bankruptcy

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court annulled the automatic bankruptcy stay and permitted the sale to go forward.

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Plaintiff has filed a number of cases with Superior Court, County of Tulare that deal with

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the foreclosure as well, namely VCU263744, VCU260959, VCU266486, VCU269326,

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VCU262910, and VCU266815. In these prior cases, Plaintiff has demonstrated a pattern of filing

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cases and then abandoning their prosecution. No trial was held in any of these cases; they resulted

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in dismissals of various kinds for failure to obey court orders. In the present case, Plaintiff tries to

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allege a RICO conspiracy to wrongfully foreclose on her property. Plaintiff’s original complaint

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named Wells Fargo; Tammy Johnston; Avedian Properties; Mark Avedian; Buckley Madole;

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Erica Loftis; Scott Reigle; Anglin, Flewelling, Rasmussen, Campbell, and Trytten; and the Tulare

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Police Department as Defendants. Doc. 1. Plaintiff’s first amended complaint named Wells

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Fargo; Cal-Western Reconveyance; Tammy Johnston; Avedian Properties; Mark Avedian;

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Buckley Madole; NBS Default Services; Scott Reigle; Tulare Police Department; Lt. Sonia

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Villasenor; and Officer Scott Wilkinson as Defendants. Doc. 3. Erica Loftis and Anglin,

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Flewelling, Rasmussen, Campbell, and Trytten appear to have been dismissed. Defendants Wells

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Fargo and Scott Reigle are jointly represented. Defendants Tammy Johnston, Mark Avedian, and

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Avedian Properties are also jointly represented. Defendants Cal-Western, Buckley Madole, NBS

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Default Services, Tulare Police Department, Sonia Villasenor, and Scott Wilkinson have not yet

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made an appearance in this case.

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Defendants Wells Fargo and Scott Reigle have made a motion to dismiss. Doc. 5.

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Defendants Tammy Johnston, Mark Avedian, and Avedian Properties have made a motion to have

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Plaintiff declared a vexatious litigant. Doc 8. Neither motion has been opposed; Plaintiff has

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made no response to any of the filings. Among other points in their motion to dismiss, Defendants

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Wells Fargo and Scott Reigle have argued that the resolution of several cases, including Bryant v.

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Wells Fargo, Tulare County Superior Court Case No VCU260959, bars the claims Plaintiff seeks
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to raise in this case. Doc. 5, 6:21-24. Defendants Tammy Johnston, Mark Avedian, and Avedian

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Properties have similarly argued that “Plaintiff impermissibly attempts to relitigate against the

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Defendants the validity of the facts, issues, and lawsuits that have been finally determined against

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her and in favor of Defendants and other parties,” referencing several cases including Bryant v.

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Johnston and Avedian, Tulare County Superior Court Case No. VCU263744 filed January 5,

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2016. Doc. 8, 2:14-16 and 3:21-5:14. They have squarely raised the issue of res judicata.

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II. Legal Standard
In considering the preclusive effect of a state court decision, “a federal court must give the

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same preclusive effect to a state-court judgment as another court of that State would give.”

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Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 523 (1986). Rulings of a state court “shall

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have the same full faith and credit in every court within the United States and its Territories and

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Possessions as they have by law or usage in the courts of such State, Territory or Possession from

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which they are taken.” 28 U.S.C. § 1738.

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“As generally understood, the doctrine of res judicata gives certain conclusive effect to a

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former judgment in subsequent litigation involving the same controversy. In its primary aspect,

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commonly known as claim preclusion, it operates as a bar to the maintenance of a second suit

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between the same parties on the same cause of action. In its secondary aspect, commonly known

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as collateral estoppel, the prior judgment operates in a second suit based on a different cause of

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action as an estoppel or conclusive adjudication as to such issues in the second action as were

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actually litigated and determined in the first action. The prerequisite elements for applying the

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doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue

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raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the

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prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the

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doctrine is being asserted was a party or in privity with a party to the prior proceeding.” People v.

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Barragan, 32 Cal. 4th 236, 252-53 (Cal. 2004), citations omitted. “California’s res judicata

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doctrine is based upon the primary right theory....It provides that a ‘cause of action’ is comprised

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of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a
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wrongful act by the defendant constituting a breach of that duty. The most salient characteristic of

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a primary right is that it is indivisible: the violation of a single primary right gives rise to but a

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single cause of action.” Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 904 (Cal. 2002),

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quoting Crowley v. Katleman, 8 Cal.4th 666, 681-82 (Cal. 1994). “[R]es judicata does not merely

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bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the

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doctrine may also preclude a party to prior litigation from redisputing issues therein decided

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against him, even when those issues bear on different claims raised in a later case.” Vandenberg v.

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Superior Court, 21 Cal. 4th 815, 828 (Cal. 1999). “Under California law, a judgment is not final

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for the purposes of collateral estoppel until it is free from the potential of a direct attack, i.e. until

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no further direct appeal can be taken.” Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d

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1102, 1105 n.3 (9th Cir. 2010).

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III. Discussion
“[I]f a court is on notice that it has previously decided the issue presented, the court may

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dismiss the action sua sponte, even though the defense has not been raised. This result is fully

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consistent with the policies underlying res judicata: it is not based solely on the defendant’s

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interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of

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unnecessary judicial waste.” Arizona v. California, 530 U.S. 392, 412 (2000) (Ginsburg majority)

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quoting United States v. Sioux Nation, 448 U.S. 371, 432 (1980) (Rehnquist dissent). “[A] district

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court, acting sua sponte, may dismiss an action where the records of that court show that a

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previous action covering the same subject matter and parties had been dismissed.” Evarts v. W.

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Metal Finishing Co., 253 F.2d 637, 639 n.1. (9th Cir. 1958). Plaintiff is proceeding in forma

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pauperis. Doc. 6. As a consequence, “the court shall dismiss the case at any time if the court

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determines that...(B) the action or appeal...(ii) fails to state a claim on which relief may be

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granted.” 28 U.S.C. § 1915(e)(2). In this case, Defendants have filed copies of the complaints and

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rulings in multiple state court decisions. Defendants Wells Fargo and Scott Reigle have directly

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asked this court for dismissal due to res judicata. The court extends the analysis to cover the

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claims against all Defendants.
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A. Identical Claim
In the present case, Plaintiff is suing for damages under RICO. Her overall assertions are

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that “Defendant sought to mislead and deceive, not original lender, must show standing, cannot

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produce original note and deed of trust because note was securitized then destroyed. Copy of

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original is invalid....[Plaintiff and her parents] became victims of pattern of racketeering,

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collection of unlawful debt. With no right to foreclose...Defendant conducted 2 trustee sales with

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not intent to secure loan modification.” Doc. 3, 6:2-18. The allegations against all of the

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Defendants concern their actions in 1) foreclosing on the property and 2) changing the locks on the

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house, causing her to lose the possessions contained therein. Plaintiff claims that Wells Fargo is

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“not original lender, cannot show standing, original notes, deed of trust, did not foreclose on

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owner trustor Plaintiff, refuses to release insurance funds $13,000 to estate for repairs, home

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damaged by squatters.” Doc. 3, 4:1-6. Against Scott Reigle, she alleges “under oath and penalty

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of perjury, falsifies ‘meet to confer’ before [becoming] an accessory to fraud.” Doc. 3, 6:23-26.

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This appears to be a reference to Scott Reigle’s legal representation of Wells Fargo. Against

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Tammy Johnson, Plaintiff alleges “unlawful entry in my home, illegal lockout, changed locks,

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forcing Plaintiff to [lose] antiques, family heirlooms, furniture inside home [and] theft of out

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$30,000.” Doc. 3, 4:10-14. Against Mark Avedian and Avedian Properties, Plaintiff alleges

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“refuses to reveal location stolen property or return stolen property.” Doc. 3, 5:1-5. Against

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Buckley Madole and NBS Default Services, Plaintiff alleges “forecloses on wrong owners of

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home knowingly Wells Fargo not true parties of interest, foreclosure fraud...collection unlawful

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debt.” Doc. 3, 5:7-15. Against Tulare Police Department, she alleges “refuses to take police

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report, Johnston’s criminal trespassing, unlawful entry, theft.” Doc. 3, 19-22. It appears that Sonia

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Villasenor and Scott Wilkinson are police officers with the Tulare Police Department. The thrust

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of Plaintiff’s claim in this case is that Defendants conspired together to deprive her of both her

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parents’ house and the contents of that house through a process of wrongful foreclosure. The main

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substantive relief Plaintiff seeks is “Plaintiff retains home, Defendant to release funds for repairs,

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they *** in name of Martha Jayne Cary, to her estate $13,000. Defendant pays separately all fines
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and violations from and to City of Tulare Code Enforcement, and outstanding property tax,

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separately. Reversal foreclosure trustee sale. Removal from credit reporting agencies, Plaintiff and

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Donale E. and Martha Jayne Cary. Prosecution, foreclosure fraud, racketeering, emotional distress,

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punitive.” Doc. 3, 7:1-15.

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This claim has already been raised and ruled upon in the state court proceedings. Res

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judicata, more specifically claim preclusion, can be evaluated regarding Plaintiff’s case as a whole

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against all of the Defendants. Under California law a primary right is “is the right to be free from

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a particular injury, regardless of the legal theory on which liability for the injury is based.” Fed’n

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of Hillside & Canyon Ass’ns v. City of L.A., 126 Cal. App. 4th 1180, 1202 (Cal. App. 2nd Dist.

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2004). The injury Plaintiff suffered was the foreclosure of the property and corresponding loss of

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the contents of the house. Plaintiff has already sought redress of this injury in state court, most

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prominently in Bryant v. Wells Fargo, Court Case No. VCU260959, Bryant v. Johnston, Court

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Case No. VCU263744, and Bryant v. Tulare Police Department, Court Case No. VCU262910.

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Plaintiff filed VCU260959 on May 21, 2015. Doc. 5-3, Ex. O. Plaintiff initially brought

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suit in her capacity as trustee of the Martha Jayne Cary Living Trust Under a Trust Dated January

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11, 2014 but amended her complaint to bring the claims in her individual capacity. Doc. 5-3, Ex.

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P. In this case, she sued Wells Fargo for “fraud...loss of property, loss of income, negligent and

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intentional emotional distress” based on “failed to modify loan, failure to trustee Mary Bryant to

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act in food faith for loan modification, failure to secure property resulting in loss of property,

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unlawful lockout, not notice (24 hour) failed to accept loan documents for loan modification.”

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Doc. 5-3, Ex. P. Plaintiff’s later amended complaint stated that the claim was “wrongful

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foreclosure.” Doc. 5-3, Ex. R. In that case, the court sustained Wells Fargo’s demurrer’s with

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leave to amend but Plaintiff violated the court’s order to file a timely amended complaint. Doc. 5-

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3, Ex. S. The court granted judgement in favor of Wells Fargo on September 21, 2016. Doc. 5-3,

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Ex. U. Plaintiff did not appeal but instead filed a motion to set aside the judgment, which was

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denied. Doc. 5-3, Exs. V and Y.

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Plaintiff filed VCU263744 against the Johnston Defendants, alleging that they unlawfully
locked her out of her house and stole her property. Plaintiff states she “found locks had been
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changed and lockbox used by realtor on front door. No notice of any kind. A supervisor with

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Wells Fargo named Matt who was denying any wrongdoing finally gave me name of their local

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agent as Tammy Johnston. She returned my phone call and stated she did place lockbox on

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door...entered my home after Wells Fargo said home was abandoned and was told to ‘get rid of’

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property inside home....Approx 6 weeks later, all possessions stolen.” Doc. 8-3, Ex. D. Plaintiff

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also complained that “Tulare PD refused to take a police report until weeks later on official check

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and title was still in our name and he looked on internet.” Doc. 8-3, Ex. D. Plaintiff failed to abide

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by various court orders. Ultimately, she did not appear at trial on January 17, 2017, and default

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judgment was granted in favor of the defendants in that case. Doc. 8-3, Ex. L.

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Plaintiff filed VCU262910 against Tulare Police Department, Sonia Villasenor, and Scott

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Wilkinson on October 15, 2015. Regarding the house at issue, Plaintiff alleged they “continued to

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wrongfully question my authority and continued to harass me. Villasenor and all officers

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continued to not allow me at my own home” and specifically sought damages for “negligent

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emotional distress, intentional emotional distress, exemplary damaged, loss of vehicle, loss of rent,

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loss of personal property.” Doc. 8-3, Ex. CC. Again, Plaintiff failed to follow court orders to

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prosecute her claims; the case was dismissed with prejudice on September 19, 2016. Doc. 8-3, Ex.

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DD.

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Though the present case is brought under RICO, Plaintiff is still seeking to remedy the

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same injury. Thus, the same primary right is at issue. “It matters not that appellant’s new counsel

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has additional facts or a new theory of wrongful foreclosure. It is the same primary right which

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appellant has always claimed.” Boyce v. T.D. Serv. Co., 235 Cal. App. 4th 429, 435 (Cal. App.

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2nd Dist. 2015). The present case, brought under RICO, is just another attempt at reversing the

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foreclosure and seeking damages for loss of the possessions inside the house. The specific acts

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that Plaintiff alleges caused her injury as well as the kind of damages she seeks are the same.

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Thus, the claim in the present case is the same as that of the prior state cases meeting the first

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requirement of res judicata.

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B. Final Judgment on the Merits

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Res judicata requires a final judgment on the merits. These three state court cases were all

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adjudged in favor of the various defendants with prejudice. Doc. 5-3, Ex. U; Doc. 8-3, Exs. L and

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DD. “[A] judgment of default in a civil proceeding is ‘res judicata as to all issues aptly pleaded in

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the complaint and defendant is estopped from denying in a subsequent action any allegations

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contained in the former complaint.’” Murray v. Alaska Airlines, Inc., 50 Cal. 4th 860, 871 (Cal.

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2010), quoting Fitzgerald v. Herzer, 78 Cal. App. 2d 127, 132 (Cal. App. 2nd Dist. 1947). “A

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judgment by default is as conclusive as to the issues tendered by the complaint as if it had been

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rendered after answer filed and trial had on allegations denied by the answer.” Fitzgerald v.

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Herzer, 78 Cal. App. 2d 127, 131 (Cal. App. 2nd Dist. 1947); Alphonzo E. Bell Corp. v. Bell

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View Oil Syndicate, 46 Cal. App. 2d 684, 692 (Cal. App. 1st Dist. 1941) (“whatever issue was

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actually and necessarily included in a former judgment will be deemed to have been adjudged

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thereby”). Similarly, failing to prosecute a case will result in res judicata. See Bernstein v.

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Allstate Ins. Co., 119 Cal. App. 3d 449, 451 (Cal. App. 2nd Dist. 1981) (applying res judicata, the

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court found “A dismissal for failure to obey a court’s discovery orders has the effect of a judgment

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on the merits against a plaintiff”). The three cases resulted in judgments on the merits for

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purposes of res judicata.

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A judgment in final when “the period of time within which to subject it to direct attack,

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e.g., appeal or through a motion to vacate, has elapsed.” De Weese v. Unick, 102 Cal. App. 3d

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100, 106 (Cal. App. 2nd Dist. 1980), citing Restatement (First) of Judgments, § 1 cmt. b. Plaintiff

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does not appear to have appealed any of the three state court judgments. In Bryant v. Wells Fargo,

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Court Case No. VCU260959, Plaintiff did file a motion to vacate judgment, which was denied.

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Doc. 5-3, Exs. V and Y. In Bryant v. Johnston, Court Case No. VCU263744, Plaintiff did file a

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motion to vacate judgment, but it was untimely. Judgment was filed on January 26, 2017, and a

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notice to that effect was filed January 27, 22017. Doc. 8-3, Ex. L. Plaintiff had six months in

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which to file a motion to vacate. See Cal. Code Civ. Proc. 473(b). Plaintiff drafted her motion to

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vacate and dated it August 5, 2017 but did not file the motion until August 28, 2017. Doc. 8-3, Ex.

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M and N, 5:2-3. Plaintiff’s motion to vacate was untimely filed. In Bryant v. Tulare Police
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Department, Court Case No. VCU262910, there is no notice of any further motions after

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judgment. These three judgements were final for purposes of res judicata.

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C. Privity
The last requirement under California law is that “the party against whom the doctrine is

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being asserted was a party or in privity with a party to the prior proceeding.” People v. Barragan,

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32 Cal. 4th 236, 252-53 (Cal. 2004), citations omitted. Here, Plaintiff herself was the party that

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received adverse judgments in the prior cases. The party against whom claim preclusion is

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asserted is Plaintiff. Privity is clearly established.

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As all three elements of res judicata are met, this case should be dismissed.

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IV. Order
Plaintiff’s claims are DISMISSED WITH PREJUDICE due to res judicata. Defendants’

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motion to declare Plaintiff a vexatious litigant need not be addressed; it is DENIED as moot. The

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Clerk of the Court is DIRECTED to close this case.

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IT IS SO ORDERED.
Dated: December 15, 2017
SENIOR DISTRICT JUDGE

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