Vann v. Wells Fargo Bank National Association

Filing 23

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE; DISMISSING ACTION; AND AWARDING ATTORNEYS' FEES 11 (Illston, Susan) (Filed on 1/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 12-5747 SI

KEITH VANN,

ORDER GRANTING DEFENDANT’S
MOTION TO STRIKE; DISMISSING
ACTION; AND AWARDING
ATTORNEYS’ FEES

Plaintiff,
v.
WELLS FARGO BANK NATIONAL
ASSOCIATION,
Defendant.

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Defendant’s motion to strike and/or dismiss the complaint is scheduled for a hearing on January
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18, 2013. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for
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resolution without oral argument and VACATES the hearing. For the reasons set forth below, the Court
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GRANTS the motion to strike; and DISMISSES the complaint without leave to amend. The Court also
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awards defendant attorneys’ fees in the amount of $2,576.00.
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BACKGROUND
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On November 8, 2012, plaintiff, acting pro se, filed this lawsuit against Wells Fargo Bank
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National Association. The complaint alleges that defendant is “using California Civil Code [section]
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1161 to displace Petitioner from his property by filing an Unlawful Detainer Action in Alameda County
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Superior Court.” Compl. at 3.1 The complaint alleges a single claim for declaratory relief based upon

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defendant’s alleged violation of California Civil Code section 1161.
This lawsuit is the latest in a series of actions involving plaintiff and Wells Fargo arising out

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of the foreclosure of plaintiff’s property located at 35 Shadow Mountain Street, Oakland, California.

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On February 24, 2012, plaintiff filed a lawsuit against Wells Fargo alleging numerous claims for relief

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arising out of the foreclosure, Vann v. Wells Fargo, Case No. 12-1181 (PJH). On May 24, 2012, Judge

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Hamilton dismissed the complaint with prejudice. On May 23, 2012, Wells Fargo filed an unlawful

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detainer action in the Superior Court of California, Alameda County, Wells Fargo v. Vann (Alameda

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County Superior Court, Case No. RG-12-631649). Plaintiff removed the unlawful detainer action to this

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United States District Court
For the Northern District of California

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Court, Wells Fargo v. Vann, Case No. 12-4023 (CRB). Judge Breyer remanded that case and awarded

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attorneys’ fees to Wells Fargo. On November 7, 2012, plaintiff again removed the same unlawful

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detainer action; that case was assigned to Judge White and remains pending, Wells Fargo v. Vann, Case

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No. 12-5725 (JW).

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Now before the Court is defendant’s motions to strike the complaint and for award of attorneys’
fees, pursuant to California’s anti-SLAPP statute.

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LEGAL STANDARD

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The California anti-SLAPP statute permits a defendant to bring a “special motion to strike” if

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a cause of action arises “from any act . . . in furtherance of the . . . right of petition or free speech . . .

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in connection with a public issue,” unless “the plaintiff has established that there is a probability that

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the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16(b)(1). “In making its

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determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the

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facts upon which the liability or defense is based.” Id. at § 425.16(b)(2). If a defendant prevails on a

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motion to strike, that defendant “shall be entitled to recover his or her attorney’s fees and costs.” Id.

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§ 425.16(c). Although it is a state statute, California’s anti-SLAPP protections apply to state law claims

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Civil Code sections 1154-1165 (the California Uniform Gifts to Minors Act) were repealed
and replaced by Part 9 (commencing with Section 3900) of Division 4 of the Probate Code (California
Uniform Transfers to Minors Act). 17 Cal. L. Rev. Comm. Reports 601 (1984).
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brought in federal court. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d

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963, 971-73 (9th Cir. 1999).
In evaluating an anti-SLAPP motion, courts engage in a two-part inquiry. “First, a defendant

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must make an initial prima facie showing that the plaintiff’s suit arises from an act in furtherance of the

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defendant’s rights of petition or free speech . . . Second, once the defendant has made a prima facie

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showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the challenged

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claims.” Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1110 (9th Cir. 2003). The plaintiff’s burden is

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“comparable to that used on a motion for judgment as a matter of law.” Price v. Stossel, 620 F.3d 992,

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1000 (9th Cir. 2010). “The plaintiff must demonstrate that the complaint is legally sufficient and

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United States District Court
For the Northern District of California

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supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted

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by the plaintiff is credited. A defendant’s anti-SLAPP motion should be granted when a plaintiff

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presents an insufficient legal basis for the claims or when no evidence of sufficient substantiality exists

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to support a judgment for the plaintiff.” Id. at 1000 (citations and internal quotation marks omitted).

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Cal. Code Civ. Proc. § 425.16(c) provides that a prevailing defendant in a special motion to

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strike shall be entitled to recover his or her attorney’s fees and costs.

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DISCUSSION

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The first step in analyzing an anti-SLAPP suit is determining whether the defendant successfully

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made “an initial prima facie showing that the plaintiff’s suit arises from an act in furtherance of the

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defendant’s rights of petition or free speech.” Vess, 317 F.3d at 1110. The Court finds that defendant

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has made that showing because “[i]t is well established that filing a lawsuit is an exercise of a party’s

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constitutional right of petition.” Chavez v. Mendoza, 94 Cal. App. 4th 1083, 1087 (2001).

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At the second step, plaintiff has not met his burden to demonstrate a probability of success

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because plaintiff’s claim is barred by the litigation privilege codified at California Civil Code § 47.

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Feldman v. 1100 Park Lane Associates, 160 Cal. App. 4th 1467, 1486 (2008) (“Park Lane’s filing of

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the unlawful detainer action clearly fell within the litigation privilege.”). The Court notes that plaintiff’s

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opposition does not address the pertinent legal authority, and instead cites irrelevant statutes and

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improperly seeks Rule 11 sanctions against Wells Fargo.
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The anti-SLAPP statute provides that a prevailing defendant “shall be entitled to recover his or

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her attorney’s fees and costs.” Id. § 425.16(c). Defendant seeks $3,359 in fees. Defendant’s lawyer,

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Keith Yandell, has filed a declaration in support of the fee request. Mr. Yandell states that he spent at

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least 4.5 hours researching and drafting the motion to strike and the declaration, and that he anticipated

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spending at least two hours researching and drafting the reply, and two hours preparing for and attending

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the hearing on this matter. Yandell Decl. ¶ 2. As the Court has vacated the hearing on this matter, the

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Court finds it appropriate to award fees at Mr. Yandell’s hourly rate for this case ($395.25) for 6.5 hours

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of work, or $2,576.00.

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United States District Court
For the Northern District of California

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CONCLUSION

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For the foregoing reasons, the Court GRANTS defendant’s motion to strike; dismisses the

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complaint without leave to amend; and orders plaintiff to pay to defendant $2,576.00 in attorneys fees.

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Docket No. 11.

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IT IS SO ORDERED.

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Dated: January 15, 2013

SUSAN ILLSTON
United States Dstrict Jdge

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