Bank of America Corporation v. U.S. Loan Auditors, LLC et al

Filing 39

ORDER signed by Judge John A. Mendez on 10/7/2010 DENYING 23 Motion to Strike and 22 Motion for Judgment On the Pleadings. (Matson, R)

1 LOEB & LOEB LLP MARK D. CAMPBELL (SBN 180528) 2 [e-mail] KAREN R. THORLAND (SBN 172092) 3 [e-mail] 10100 Santa Monica Boulevard, Suite 2200 4 Los Angeles, California 90067-4120 Telephone: [phone] Facsimile: 310-282-2200 6 Attorneys for Plaintiff BANK OF AMERICA CORPORATION 7 8 9 10 11 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

BANK OF AMERICA ) 12 CORPORATION, a Delaware ) corporation, ) 13 ) Plaintiff, ) 14 ) v. ) 15 ) U.S. LOAN AUDITORS, LLC, a ) 16 California limited liability company; ) SHANE BARKER, an individual; ) 17 JAMES SANDISON, an individual; and ) DOES 1-10, ) 18 ) Defendants. ) 19 ) ) 20 ) 21 22 23 24 25 26 27 28
Loeb & Loeb
A Limited Liability Partnership Including Professional Corporations

Case No. 2:10-CV-01329-JAM-JFM Date: September 15, 2010 Time: 9:30 a.m. Ctrm: 6 ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO STRIKE

LA2078180.2 203735-10018

[PROPOSED] ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO STRIKE

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1

On September 15, 2010, Defendants U.S. Loan Auditors, LLC's, Shane

2 Barker's, and James Sandison's (collectively "Defendants") Motion for Judgment 3 on the Pleadings and Motion to Strike (collectively the "Motions") came on for 4 hearing before this Court in Courtroom No. 6 of the United States District Court, 5 501 I Street, Sacramento, CA 95814. Mark D. Campbell appeared on behalf of 6 Plaintiff Bank of America Corporation; Mark A. Campbell and J. Douglas Durham 7 appeared for Defendants. 8 Having considered the briefing on the motions, all pleadings and papers 9 heretofore filed in this action, and the arguments of counsel, the Court DENIES 10 Defendants Motion for Judgment on the Pleadings and Motion to Strike for the 11 reasons set forth below: 12 1. For purposes of a motion for judgment on the pleadings, the Court must 13 assume the truthfulness of the material facts alleged in the Complaint, and all 14 inferences reasonably drawn from such facts must be construed in favor of the 15 responding party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The 16 Court finds that many of the arguments raised in the opposition and reply briefs to 17 Defendants' motion raise factual issues which may not be decided on a motion for 18 judgment on the pleadings. Accordingly, Defendants are not entitled to judgment on 19 the pleadings for this reason. The Court also finds that under the standard applied to 20 motions for judgment on the pleadings, BOA has asserted sufficient facts to 21 establish standing under the Lanham to assert its false advertising claims against 22 Defendants. However, this finding is without prejudice to Defendants' right to raise 23 standing on summary judgment. Moreover, the Court finds, for the reasons stated 24 on the record, that the sham exception to the Noerr-Pennington doctrine applies in 25 this case. See Larsen v. Comm. of Internal Revenue, 765 F.2d 939, 941 (9th Cir. 26 1985) ("The right to petition protected by the First Amendment does not include the 27 right to maintain groundless proceedings."). The Court further finds that the "law of 28 2
LA2078180.2 203735-10018 [PROPOSED] ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO STRIKE

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1 the case" doctrine does not apply with regard to its prior rulings on Plaintiff's 2 Motion for Preliminary Injunction. Finally, the Court finds that Regulation Z does 3 not apply to the advertising at issue in this case. 4 2. With respect to Defendants' Motion to Strike, the Court finds that the 5 purported speech in this case is, at best, commercial speech which is not entitled to 6 protection under California's Anti-SLAPP statute (Cal. Code Civ. P. § 425.16). The 7 Court further finds that Defendants are not entitled to protection under the Anti8 SLAPP statute because they are not engaged in protected petitioning activity. 9 Accordingly, pursuant to these findings, and for the additional reasons stated 10 on the record during the hearing on the Motions, the Court hereby ORDERS that 11 Defendants' Motion for Judgment on the Pleadings and Motion to Strike are 12 DENIED. 13 14 15 16 Dated: October 7, 2010 17 18 19 20 21 22 23 24 25 26 27 28 3
LA2078180.2 203735-10018 [PROPOSED] ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO STRIKE

IT IS SO ORDERED.

/s/ John A. Mendez________________ HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE

Approved as to form: /s/ J. Douglas Durham

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