Rich Rydstrom Attorney OPPO STRIKE ROOP Federal June 2012

7/31/2019 Rich Rydstrom Attorney OPPO STRIKE ROOP Federal June 2012

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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE –

EDCV12-00640-CJC (FFMx)

RICHARD IVAR RYDSTROM, ESQ. CSBN: [email protected]

RYDSTROM LAW OFFICE4695 MacArthur Court 11th Floor

Newport Beach, Ca 92660949.678.2218 (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; CITIRESIDENTIAL LENDING INC.;CR TITLE SERVICE, INC.

Does 1 to 100, InclusiveDefendants.

Case NO.: EDCV12-006 0 CJC(FFMx)

PLAINTIFFS MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TO DEFENDANT’SCITIMORTGAGE, INC., CR TITLESERVICES, INC., AND CITIRESIDENTIAL LENDING, INC.’S NOTICE OF MOTION ANDMOTION TO STRIKE

Date: July 9, 2012Time: 1:30 p.m.Courtroom: 9BJudge: Hon. Cormac J.Carney

FAC Filed: March 23, 2012

ALL PARTIES AND THEIR ATTORNEYS TAKE NOTICE:

Case 5:12-cv-00640-CJC-FFM Document 21 Filed 06/08/12 Page 1 of 24 Page ID #:853





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TABLE OF CONTENTS

I. INTRODUCTION…………………………………………………………... 1

II. ARGUMENT……………………………………………………………… ..2

a. Defendant’s Motion to Strike is in Violation of FRCP 12(f) as it isUntimely……………………………………………………………..2

b. Plaintiff’s FAC Does Contain Specific Factual Allegations of MaliceAs Conceded to by Defendants in its Speaking Motion …………....3

c. Plaintiff is entitled to Recover Punitive Damages Where Fraud isProven at Trial ………………………………………………………..4

d. Plaintiff’s 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 Attorney’s 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 RelateBack to the Original Complaint; and (2) the New Cause of Action isWithin 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. 72012)…………………………………………………………………………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.4

th999 (2012)…………………………………………..1, 5, 10

Other Cases

Hadley v. Baxendale

(1854) 9 Ex Ch 341……………………………………………………..1, 10






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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE – EDCV12-00640-CJC (FFMx)

MEMORANDUM OF POINTS & AUTHORITIES

I. INTRODUCTION:

Defendants concede that plaintiff “was on medication…and didn’t

recall relating specific financial information to [CMI] as she was drugged.”

(emphasis added) (Motion to Strike, at pg. 4, lines 11-27). Plaintiff’s FAC

alleges facts and inferences drawn therefrom demonstrating intentional,

malicious, fraudulent, oppressive or despicable conduct that is carried with a

willful disregard of Plaintiff’s rights by Defendants. Plaintiff’s FAC alleges

a common plan and scheme to defraud Plaintiff (FAC page 2, ¶2). Plaintiff

has sufficiently alleged clear and convincing facts to support Plaintiff’s

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 attorney’s

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 per’s

original complaint, and the new causes of action are within the scope of the

order granting leave to amend.

II. ARGUMENT

a. Defendant’s Motion to Strike is in Violation of FRCP 12(f)

as it is Untimely:

Defendant’s 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 aninsufficient 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 tothe pleading or, if a response is not allowed, within 21 daysafter being served with the pleading.

Defendants admit in its Notice of Removal (pg. 2, ¶ 2) that

Defendants were served with Plaintiff’s 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

Plaintiff’s 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. Plaintiff’s FAC Does Contain Specific Factual Allegations of

Malice As Conceded to by Defendants in its Speaking

Motion: Plaintiff’s 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). Plaintiff’s FAC does allege facts demonstrating intentional,

malicious, fraudulent, oppressive or despicable conduct that is carried with a

willful disregard of Plaintiff’s rights by Defendants. Plaintiff’s 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 medication…and didn’t 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 Plaintiff’s claim that Defendant’s 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 Plaintiff’s emotional and physical injuries and damages. 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 Para208; Cause #12 at Para 223; Cause #13 Para 229; Cause #15Para 250; Cause #17 Para 267.

Plaintiff’s 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 Defendant’s 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 allservicing 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 defendant’s 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 Defendant’s 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

1 Reliance can be proved in a fraudulent omission case by establishing that “had theomitted 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.2d568]). "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, isentitled to recover compensation for loss of time, attorney's fees, and other expendituresthereby suffered or incurred." ( Prentice v. North Amer. Title Guar. Corp. (1963) 59Cal.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 thedefinition 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.3d374.




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CitiMortgage acted with the intent to induce Plaintiff’s 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, Plaintiff’s allegations plead

facts sufficient to show that the Defendants acted with oppression, fraud, or

malice pursuant to Code of Civil Procedure §3294, and therefore Plaintiff’s

allegations support a request for punitive damages.

d. Plaintiff’s Complaint Does Contain Specific FactualAllegations 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 afraud 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 Plaintiff’s 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

Plaintiff’s claims are based in fraud.

e. Plaintiff Is Entitled to Attorney’s Fees and Treble Damages

and Expressly so in Connection With the UCL Claim: Plaintiff is entitled to attorney’s 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 attorney’s 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 injunctiverelief, 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 actualdamages, if any, sustained by any person who has assigned tothe 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 beawarded 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 Defendant’s breach of contract,




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which includes attorney’s fees. (1854) 9 Ex Ch 341. Attorney’s 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

Plaintiff’s property, resulting in Plaintiff having to hire legal counsel to

protect her rights. Attorney’s 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

attorney’s fees, pursuant to CA Civil Code §1032.

Furthermore, Plaintiff’s 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 CivilCode § 1788.17; see also Ortega v. HomEq Servicing , No. CV09-02130, 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 attorney’s 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. 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 attorney’s fees as Plaintiff was

damaged by having to expend attorney’s 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 Defendant’s

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 Defendant’s 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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Moreover, Plaintiff added more detail per the court’s 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

Court’s 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 court’s

reason for sustaining the earlier demurrer. Similarly, the new causes of

action added by Plaintiff in her FAC supported the court’s request for

additional facts to state a claim under the UCL. Moreover, Plaintiff is




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obligated to allege additional theories on the same facts and occurrences, as

it did in amending the pro per’s 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 Defendant’s

Motion to Strike, because Plaintiff has in fact alleged sufficient facts to

request punitive damages and attorney’s fees.

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




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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 DEFENDANT’S

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 BEALLState Bar No. 135514 State Bar No. 162456PEREZ & HAWES LLP DAMIAN P. RICHARD21300 Victory Boulevard State Bar No. 262805Suite 820 WOLFE & WYMAN LLPWoodland 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 firm’s 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 postagemeter 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 Law’s 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 Law’s 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 theforegoing is true and correct.

[X] FEDERAL: I declare that I am employed in the offices of a member of the State Bar of this Courtat whose direction the service was made.

__________________________________________ (Signature)


Documents

Rich Rydstrom Attorney OPPO STRIKE ROOP Federal June 2012