Agha v. United States of America, et al, No. 1:2015cv00042 - Document 134 (E.D. Cal. 2015)

Court Description: ORDER GRANTING Defendants' Motions to Dismiss (Docs. 5 , 7 , 13 , 14 , 38 , 39 , 96 ); ORDER DENYING Defendants' Motions to Strike (Docs. 8 , 37 ); and ORDER DENYING Plaintiff's Pending Motions (Docs. 43 , 44 , 53 , 71 , 75 , 107 ) signed by District Judge Anthony W. Ishii on 9/28/2015. (Jessen, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 SALMA H. AGHA-KHAN, 9 10 11 12 CASE NO. 1:15-CV-00042-AWI Plaintiff, ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S PENDING MOTIONS v. UNITED STATES OF AMERICA, et. al., Defendants. (Docs. 5, 7, 8, 13, 14, 37, 38, 39, 43, 44, 53, 71, 75, 96, 107) 13 14 15 This is case brought by Plaintiff Salma H. Agha-Khan against a laundry list of roughly 58 16 named defendants and 100 Doe defendants. Now pending before the Court and decided in this 17 order are a motion to dismiss by defendants David Cooper, Barry Lee Goldner, Lisa Holder, Klein 18 Denatale, Goldner Cooper Rosenlieb and Kimball LLP, Connie Parker, and Jeffrey Vetter (Doc. 19 5), a motion to dismiss by defendants Andrew Bao, CitiMortgage Inc., CitiBank, N.A., Brian 20 Gunn, Heather Kim, and Wolfe & Wyman LLP (Doc. 7), a motion to strike by defendants Andrew 21 Bao, CitiMortgage Inc., CitiBank, N.A., Brian Gunn, Heather Kim, and Wolfe & Wyman LLP 22 (Doc. 8), a motion to dismiss by defendants Re Max Holdings Inc. and Re Max LLC (Doc. 13), a 23 motion to dismiss by defendants Jodie Goodman, Patricia Laffin-Miko, Mother Lode Holding 24 Company, Placer Title Company, and Theresa Roberts (Doc. 14), a motion to strike by defendant 25 Gary Grossman (Doc. 37), a motion to dismiss by defendant Gary Grossman (Doc. 38), a motion 26 to dismiss by defendants Frederick Clement, Richard Lee, and the United States of America (Doc. 27 39), two motions for sanctions by Agha-Khan (Docs 43, 44), Agha-Khan’s motion to transfer the 28 1 action from the Eastern District of California (Doc. 53), Agha-Khan’s motion for disclosure of 2 names of judges making the recommendation and signing the “Internal Transfer” order of her 3 Eastern District bankruptcy case to the Eastern District (Doc. 71), Agha-Khan’s motion for order 4 returning possession of her home, real property located at 11622 Harrington Street, Bakersfield, 5 CA (Doc. 75), a motion to dismiss by defendants Anthony Darling, August Landis, Mark Pope, 6 Gregory Powell, Robin Tubesing, and the United States of America (Doc. 96), and Agha-Khan’s 7 motion to disqualify the Eastern District from her case and all its related matters (Doc. 107). For 8 the reasons that follow, the Court denies all of Agha-Khan’s pending motions (Docs. 43, 44, 53, 9 71, 75, 107), grants all the motions to dismiss with prejudice (Docs. 5, 7, 13, 14, 38, 39, 96), and 10 denies the motions to strike as moot (Docs. 8, 37). 11 Background 12 Agha-Khan filed the present action in United States Bankruptcy Court in the Eastern 13 District of California on December 31, 2014. Doc. 1. The case was reassigned to this Court for 14 all further proceedings. Doc. 4. The core of the complaint is that the defendants allegedly acted 15 improperly before, during, and after Agha-Khan’s Chapter 7 bankruptcy case filed in the 16 Bankruptcy Court for the Eastern District of California, Case No. BK 10-161183 (“Bankruptcy 17 Case”). Doc. 1. 18 This case does not exist in isolation, however, but is instead one of a constellation of suits 19 before this court, other federal courts, and in California superior courts. Agha-Khan has filed 20 multiple separate lawsuits arising from the same residential mortgage loan and same real property: 21 (1) Khan v. CitiMortgage, Inc., No. S-1500-CV-278192 (Super. Ct. Cal.) (voluntarily dismissed 22 without prejudice); (2) Khan v. CitiMortgage, Inc., No. 1:12-cv-02056, Doc. 11 (E.D. Cal. Feb. 7, 23 2013) (voluntarily dismissed without prejudice); (3) Khan v. CitiMortgage, Inc., No. 24 1:13-cv-01378, Doc. 7 (E.D. Cal. Sept. 30, 2013) (granting motion to dismiss and judgment in 25 favor of CitiMortgage, Inc. and Wilmington Trust Company); and (4) Agha v. CitiMortgage, Inc., 26 et. al., No. 13-01086-B, Doc. 264 (E.D. Cal. Feb. 19, 2015) (granting motion to dismiss without 27 prejudice to debtor’s right to pursue non-bankruptcy claims in a court of proper jurisdiction). 28 Indeed, in a fifth case, the Central District of California granted motions to dismiss filed by many 2 1 of the same defendants in this case on substantially similar issues as before this court now. See 2 Salma Agha-Khan v. United States of America, et al., No. 2:14-cv-03490, Doc. 218 (C.D. Cal. 3 April 20, 2015). The order by the Central District is now on appeal in the Ninth Circuit. 4 In the Central District, Agha-Khan was provided two opportunities to amend her complaint 5 but ultimately failed to state any cognizable claim. Her claims in her Second Amended Complaint 6 (“SAC”), filed on September 12, 2014, were organized into five “conglomerations of frauds,” all 7 of which related to her Bankruptcy Case and certain estate assets. Id. at 2. With respect to the 8 first “conglomeration of frauds,” Agha-Khan alleged that defendants conspired to “illegl[ly] 9 reopen[]” her Bankruptcy Case, which had been closed on September 23, 2010. Id. The United 10 States Trustee sought to reopen the Bankruptcy Case, due to Agha-Khan’s purported “fail[ure] to 11 disclose in her bankruptcy schedules, including but not limited to, an interest which ha[d] not been 12 administered by the estate.” Id. The Bankruptcy Case was reopened on September 18, 2012. 13 Agha-Khan alleges that the granting of the Motion to Reopen was fraudulent. Id. 14 The second “conglomeration of frauds” related to the attorneys that were hired by the 15 trustee in Agha-Khan’s Bankruptcy Case. Id. The trustee, Vetter, submitted an application to hire 16 KDG to represent him in the bankruptcy proceedings. Id. at 2-3. Vetter represented that based 17 upon the declaration of Lisa Holder, a KDG attorney, he “believe[d] that [KDG and] its members 18 and/or associates do not hold or represent an interest adverse to that of [Vetter] or the estate.” Id. 19 at 3. However, Agha-Khan alleges that the firm previously represented her in a separate matter 20 and ultimately settled a malpractice claim that Agha-Khan asserted against the firm. Id. She 21 alleges that Vetter “deliberately conceal[ed] the conflict of interest between [her] and Defendant 22 KDG law firm.” Id. However, the SAC also includes an exhibit containing a statement by Holder 23 that KDG’s “conflict check had not picked up prior representation of Dr. Agha” because of the 24 different names Agha-Khan had used in the past. Id. Moreover, the KDG representation related 25 to “construction defects” at Agha-Khan’s house, and “[t]he specific attorney who represented Dr. 26 Agha[-Khan] left the firm in or about May 2010.” Id. In the Bankruptcy Case, Judge Clement 27 approved the employment of KDG, and found that the firm’s prior representation of Agha-Khan 28 “d[id] not present grounds for disqualification.” Id. 3 1 The third, fourth, fifth, and sixth “conglomerations of frauds” concerned Agha-Khan’s 2 allegations regarding the sale of an interest in an LLC and the interest in litigation in which the 3 LLC was involved. Id. Although the SAC is difficult to understand, the SAC exhibits clarify that 4 the “San Francisco Lawsuit” refers to a lawsuit filed in October 2011, on behalf of Agha-Khan 5 and a limited liability corporation, “Vodka from Around the World” (“VFAW”) – in which 6 Agha-Khan had an interest. Id. The defendants in the San Francisco Lawsuit included Breitman 7 and BBG, a real estate broker and a real estate brokerage firm that allegedly advised Agha-Kahn 8 and VFAW regarding Agha-Khan’s investment in a San Francisco nightclub. In the San Francisco 9 Lawsuit, Agha-Khan alleged, among other things, that Breitman and BBG breached their 10 representation agreement by “encourage[ing] Plaintiffs to occupy the [club premises] without 11 making sure that the landlord had first approved Plaintiffs as a subtenant.” Id. The landlord later 12 forced Agha-Khan to vacate the premises, leading to a loss in Agha-Khan’s investment. Id. 13 In the re-opened Bankruptcy Case, Vetter proposed to sell the estate’s interest in VFAW 14 and the San Francisco Lawsuit at a “private sale with an opportunity for overbid at the hearing,” 15 believing the sale to be “in the interest of the estate because it will liquidate an asset of the estate 16 quickly without the need to enter into litigation that may have an uncertain result.” Id. at 4. After 17 considering Agha-Khan’s opposition, the Bankruptcy Court granted Vetter’s motion. Id. The 18 Bankruptcy Court rejected Agha-Khan’s argument that the trustee, Vetter, had abandoned the 19 interest in the San Francisco Lawsuit, and found that the interest in litigation remained the 20 property of the estate. Id. While Agha-Khan had an opportunity to bid to repurchase the interest 21 in VFAW and the San Francisco Lawsuit, she withdrew from bidding. The VFAW interest and 22 the interest in the San Francisco Lawsuit were sold to BBG on January 24, 2013. Id. In the SAC, 23 Agha-Khan alleges that “Defendants lay a fraudulent claim on Plaintiffs [sic] San Francisco 24 lawsuit calling it an ‘asset’ when only a trial date was set and claiming it to be ‘PROPERTY OF 25 ESTATE’ lying that Plaintiff had failed to disclose and schedule this possible future ‘lawsuit 26 asset,’ an intangible asset, in Schedule B of her original Bankruptcy schedules.” Id. In sum, in the 27 Central District, Agha-Khan claimed that the reopening of her Bankruptcy Case because of her 28 supposedly undisclosed interest in VFAW and the San Francisco Lawsuit, and the subsequent sale 4 1 of such interests, were improper. Id. On April 20, 2015, the Central District issued an order 2 dismissing the case with prejudice and finding that Agha-Khan had failed to state any cognizable 3 claims. Id. 4 On December 31, 2014, Agha-Khan filed a substantially similar complaint in the United 5 States Bankruptcy Court in the Eastern District of California. Doc. 1. This complaint lists 6 additional defendants and causes of action. It also does not use the words “conglomeration of 7 frauds,” but is based upon the same alleged massive overarching conspiracy of fraud and the same 8 alleged nucleus of facts as those alleged in the Central District. The case was reassigned to this 9 Court for all further proceedings. Doc. 4. A multitude of motions to dismiss have since been 10 filed, with Agha-Khan responding with volumes of pleadings and a multitude of her own motions. 11 Motions to Dismiss (Docs. 7, 13, 14, 39) and Motions to Strike (Doc. 8) 12 As these events have given rise to separate district court cases, the court must focus on the 13 allegations and causes of action present in this case and determine if they are distinct from the 14 allegations and causes of action that were decided in the Central District of California. Plaintiff 15 cannot assert essentially identical causes of action in multiple cases before the district court. 16 “Plaintiffs generally have ‘no right to maintain two separate actions involving the same subject 17 matter at the same time in the same court and against the same defendant.’ ” Adams v. California 18 Dep’t Health Serv., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other grounds by Taylor v. 19 Sturgell, 553 U.S. 880, 904 (2008) and quoting Walton v. Eaton Corp., 563 F.2d 66, 70-71 (3rd 20 Cir. 1977). 21 To determine whether a suit is duplicative, courts use the test for claim preclusion. As the 22 Supreme Court stated in The Haytian Republic, “the true test of the sufficiency of a plea of ‘other 23 suit pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as 24 ‘the thing adjudged,’ regarding the matters at issue in the second suit.” 154 U.S. 118, 124 (1894); 25 see also Hartsel Springs Ranch of Col, Inc. v. Bluegreen Corp., 296 F.3d 982, 987 n. 1 (10th Cir. 26 2002) (“[I]n the claim-splitting context, the appropriate inquiry is whether, assuming that the first 27 suit were already final, the second suit could be precluded pursuant to claim preclusion.”); Curtis 28 v. Citibank, N.A., 226 F.3d 133, 139–40 (2nd Cir. 2000) (“[T]he normal claim preclusion analysis 5 1 applies and the court must assess whether the second suit raises issues that should have been 2 brought in the first.”); Davis v. Sun Oil Co., 148 F.3d 606, 613 (6th Cir. 1998) (per curiam) 3 (referring to the doctrine against claim-splitting as “the ‘other action pending’ facet of the res 4 judicata doctrine”). 5 Thus, in assessing whether the second action is duplicative of the first, courts examine 6 whether the causes of action and relief sought, as well as the parties or privies to the action, are the 7 same. See Curtis, 226 F.3d at 140 (holding that the trial court did not abuse its discretion in 8 dismissing “Curtis II claims arising out of the same events as those alleged in Curtis I,” which 9 claims “would have been heard if plaintiffs had timely raised them”); Serlin v. Arthur Andersen & 10 Co., 3 F.3d 221, 223 (7th Cir. 2012) (“[A] suit is duplicative if the claims, parties, and available 11 relief do not significantly differ between the two actions.” (internal quotation marks omitted)). 12 1. Same Transaction 13 The Court must first examine whether the causes of action in Agha-Khan’s two suits arise 14 from the same transaction. To ascertain whether successive causes of action are the same, the 15 Ninth Circuit uses a transaction test, developed in the context of claim preclusion. “Whether two 16 events are part of the same transaction or series depends on whether they are related to the same 17 set of facts and whether they could conveniently be tried together.” Western Sys., Inc. v. Ulloa, 18 958 F.2d 864, 871 (9th Cir.1992), citing Restatement (Second) of Judgments § 24(1) (1982). In 19 applying the transaction test, the Ninth Circuit examines four criteria: 20 21 22 23 “(1) whether the rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. ‘The last of these criteria is the most important.’ ” Adams, 487 F.3d at 689, quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 24 1201-2 (9th Cir. 1982). In the present complaint, Agha-Khan has listed additional causes of action 25 compared with those in her SAC in the Central District of California. However, the Court has 26 reviewed both the SAC filed in the Central District and the operative complaint in this Court and 27 finds that both arise out of the same transactional nucleus of facts. The allegations in this court 28 6 1 relate to the “conglomeration of frauds” that she alleged in the Central District. Indeed, both 2 complaints revolve around the same alleged massive conspiracy of fraud initiated by a few “main 3 players.” Both matters would involve substantially the same evidence. The rights or interests 4 established by the Central District judgment would further be impaired by the prosecution of this 5 action. This suit is based on events occurring before the filing of the action in the Central District. 6 Agha-Khan had knowledge of the facts underlying her new causes of action and could have 7 litigated them in initial suit. Thus, under the Costantini factors, the Court finds that the causes of 8 action listed in Agha-Khan’s Central District SAC arise out of the same transaction as the causes 9 of action pled in this Court. 10 2. Same Parties or Privies 11 The Court must next determine whether the parties in this action are the same or in privity 12 with the parties in the Central District action. In fact, many of the defendants in this case are the 13 same as in the Central District. Defendants United States of America, Fredrick Clement, Bruce 14 Breitman, BBG Ltd, the Estate of Peter Zouras, David N. Chandler (aka David N. Chandler Sr.), 1 15 David N. Chandler PC, CitiMortgage Inc., CR Title Services Inc, Debbie Banducci, Re Max 16 LLC,2 and Re Max Magic were all defendants in the Central District. Since these defendants are 17 the same as in the Central District and the causes of action all arise out of the same transaction as 18 in the Central District, the claims against these defendants are duplicative proceedings. 19 Agha-Khan’s present complaint also names additional defendants that were not explicitly 20 named in the Central District, but are nonetheless in privity with Central District defendants. In 21 Taylor, the Supreme Court recognized six categories of non-party relationships that are sufficient 22 to justify a finding of preclusion. 553 U.S. at 893. The six categories are: 23 1. The nonparty agrees to be bound by a prior judicial determination between other parties; 2. A substantive legal relationship exists that binds the nonparty; 3. The nonparty was adequately represented in the prior litigation by someone with the same interests who was a party; 4. The nonparty assumed control of the prior litigation; 24 25 26 27 28 1 David N. Chandler Sr. is in fact named twice on the current complaint as he is also listed as “David N. Chandler,” without the suffix, which is how he was named as a defendant in the Central District SAC. 2 Re Max LLC, a real estate corporation, is called Re Max Real Estate Corporation in the Central District SAC and judgment. 7 1 2 5. The nonparty is the proxy or agent of a party to the prior litigation; 6. A special statutory scheme expressly forecloses subsequent litigation by the nonparty. Id. at 893-95. 3 The third category applies here to officers of the United States. “ ‘There is privity between 4 officers of the same government so that a judgment in a suit between a party and a representative 5 of the United States is res judicata in relitigation of the same issue between that party and another 6 officer of the government.’ ” Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (although 7 the defendants in the case were different than the defendants in a prior case, all defendants in both 8 cases were representatives of the United States who were involved in the same events and 9 therefore they were protected them from relitigation because there was privity between officers of 10 the same government), quoting Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-3 11 (1940). Defendant Judge Richard Lee is employed by the United States. The United States of 12 America was a defendant in the Central District. The complaint only alleges acts by Judge Lee 13 within the scope of his employment. The complaint here revolves around the same massive 14 conspiracy of fraud as the Central District. Indeed, the complaint specifically alleges that “[a]ll of 15 these corrupt Defendants together PERFECTLY EXECUTED THEIR PLAN WITH EACH 16 DEFENDANT ACTING THEIR PART ACCORDING TO THE LEGAL POSITION THEY 17 HELD – donning their cloaks of Bankruptcy Judge, Bankruptcy Trustee and Attorneys etc.” Id. at 18 47:22-25. Accordingly, Judge Richard Lee is in privity with Central District defendants to the 19 extent that it protects him from defending this duplicative proceeding. 20 The third category also protects agents and principals of the Central District defendants 21 from relitigation in this Court. See Adkins v. Allstate Ins., Co., 729 F.2d 974, 975 n. 1 (4th Cir. 22 23 24 1984) (defendant in privity with employer since the claim against him “implicates only actions taken by him within the scope of his employment as an . . . agent.”); Henry v. Farmer City State Bank, 808 F.2d 1228, 1235 n.6 (7th Cir. 1986) (“Even though the Bank was the only actual party 25 to the state court mortgage foreclosure proceedings, the other defendants, as directors, officers, 26 employees, and attorneys of the Bank, are in privity with the Bank for purposes of res judicata.”). 27 The claim against the Estate of Peter J. Zouras in the Central District implicated only alleged 28 8 1 actions taken by Peter J. Zouras within the scope of his employment at the Law Offices of Peter J. 2 Zouras. Accordingly, the Law Offices of Peter J. Zouras is in privity with the Estate of Peter J. 3 Zouras. For similar reasons, David N. Chandler Jr. is in privity with the Central District defendant 4 David N. Chandler PC. 5 Likewise, the attorneys and their law firms who advised defendants in the Central District 6 with respect to the transactions giving rise to these claims are in privity to the extent that they can 7 take advantage of the claim-preclusion available to the defendants. See Weinberger v. Tucker, 8 510 F.3d 486, 493 (4th Cir. 2007); Plotner v. AT&T Corp., 224 F.3d 1161, 1169 (10th Cir. 2000); 9 Mortell v. Mortell Co., 887 F.2d 1322, 1327 (7th Cir. 1989) (any liability of the attorney would be 10 derivative; because the client “has prevailed,” the attorney “too is entitled to judgment.”). While 11 privity does not automatically exist with respect to every attorney-client interaction (Weinberger, 12 510 F.3d at 493), when a law firm defendant appears in a subsequent action “by virtue of their 13 activities as representatives” of a party in a prior action, privity exists. Plotner, 224 F.3d at 1169. 14 In this matter, Bruce Breitman was a defendant in the Central District. Terry Carlson and Terry 15 Carlson Law Firm are defendants in this Court and were allegedly fraudulently hired by Breitman 16 to represent Vodka From Around the World LLC. Accordingly, since any liability against Terry 17 Carlson and Terry Carlson Law Firm would be derivative of Breitman, they are in privity here. 18 Similarly, Wolfe & Wyman LLP and its attorneys Brian Gunn, Andrew Bao, and Heather Kim, 19 Pite Duncan LLP and its attorneys Eddie Jimenez, Brian Paino, Michael Krahenbuhl, and Richard 20 Monahan, and Gattuso & Kummer Law and its attorney Dixon Kummer are being sued “by virtue 21 of their activities as representatives” of their client the Central District defendant CitiMortgage 22 Inc. They, accordingly, are in privity. 23 The second and third category applies to parent and subsidiary defendants. See, e.g., Lake 24 at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 728 (9th Cir. 25 1991) (holding that “wholly-owned subsidiary and partnership in which that subsidiary is the 26 general partner may invoke the two dismissals of the subsidiary's parent and claim res judicata”), 27 cert. denied, 503 U.S. 920 (1992); In re Gottheiner, 703 F.2d 1136, 1139–40 (9th Cir. 1983) 28 (defendant in prior suit was wholly owned by defendant in subsequent suit, and collateral estoppel 9 1 barred second suit); Sparks Nugget, Inc. v. CIR, 458 F.2d 631, 639 (9th Cir. 1972) (privity exists 2 between a sole or controlling stockholder and its company), cert. denied sub nom. Graves v. CIR, 3 410 U.S. 928 (1973). The SAC in the Central District named CitiMortgage Inc. and CR Title 4 Services Inc. as defendants. 5 company CitiBank, N.A., and fellow subsidiary Wilmington Trust Company. 6 CitiBank, N.A., and Wilmington Trust Company are in privity with the Central District defendants 7 CitiMortgage Inc. and CR Title Services Inc. By the same token, Re Max Holdings Inc., a parent 8 company, is in privity with the Central District defendants Re Max LLC and Re Max Magic. In the present complaint, Agha-Khan has named their parent Accordingly, 9 Thus, by bringing additional causes of action and by naming additional defendants in 10 privity with prior defendants based upon the same operative nucleus of facts, Agha-Khan is 11 attempting to fragment a single complaint, file a third amended complaint from her complaint in 12 the Central District, and litigate piecemeal issues that could have been resolved in her earlier 13 action. Indeed, Agha-Khan sought leave to amend in the Central District to file a third amended 14 complaint adding many of the defendants now named here. 15 129-30. The Court denied this motion as moot after dismissing the case with prejudice. See id., 16 Doc. 218. Nevertheless, without being granted leave to amend, Agha-Khan filed motions for 17 sanctions in the Central District against, and listing as defendants, many of the newly named 18 defendants in this Court. See id., Doc. 179. See No. 2:14-cv-03490, Docs. 19 Additionally, the complaint reads more like a manifesto than proper legal pleadings and 20 fails to set forth a short and plain statement of the claim showing how plaintiff is entitled to relief 21 as required to comply with Federal Rule of Civil Procedure 8(a)(2) and fails to allege fraud with 22 the particularity required by Federal Rule of Civil Procedure 9(b). 23 allegations here and in the Central District both revolve around a massive and fanciful conspiracy 24 against her by numerous judicial officers, attorneys, and individuals. Amendment to this would be 25 futile. Indeed, Agha-Khan’s 26 Accordingly, the Court dismisses, with prejudice, the claims against the United States of 27 America, Fredrick Clement, Bruce Breitman, BBG Ltd, the Estate of Peter Zouras, David N. 28 Chandler (aka David N. Chandler Sr.), David N. Chandler PC, CitiMortgage Inc., CR Title 10 1 Services Inc., Re Max LLC, Debbie Banducci, Re Max Magic, Judge Richard Lee, the Law 2 Offices of Peter J. Zouras, David N. Chandler Jr., Terry Carlson, Terry Carlson Law Firm, Wolfe 3 & Wyman, LLP, Brian Gunn, Andrew Bao, Heather Kim, Pite Duncan LLP, Eddie Jimenez, Brian 4 Paino, Michael Krahenbuhl, Richard Monahan, Gattuso & Kummer Law, Dixon Kummer, 5 CitiBank, N.A., Wilmington Trust Company, and Re Max Holdings Inc., as duplicative 6 proceedings of an earlier-filed action. The Court dismisses them to protect the parties from 7 frivolous and expensive litigation and to promote judicial economy. Cf. Kerotest Mfg. Co. v. C- 8 O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952) (“Wise judicial administration, giving regard to 9 conservation of judicial resources and comprehensive disposition of litigation, does not counsel 10 rigid mechanical solution of such problems.”). 11 Consequently, this Court grants the motions to dismiss with prejudice filed by defendants 12 Andrew Bao, CitiMortgage Inc., CitiBank, N.A., Brian Gunn, Heather Kim, and Wolfe & Wyman 13 LLP (Doc. 7), by defendants Re Max Holdings Inc. and Re Max LLC (Doc. 13), and by 14 defendants Frederick Clement, Richard Lee, and the United States of America (Doc. 39). The 15 motion to strike by defendants Andrew Bao, CitiMortgage Inc., CitiBank, N.A., Brian Gunn, 16 Heather Kim, and Wolfe & Wyman LLP (Doc. 8) is denied as moot. 17 Motions to Dismiss (Docs. 5, 96) 18 Agha-Khan also asserts various claims against the bankruptcy trustee, Jeffrey Vetter, and 19 his counsel. The Central District dismissed these claims under the Barton doctrine for lack of 20 subject matter jurisdiction. This doctrine requires that “a party must first obtain leave of the 21 bankruptcy court before it initiates [1] an action in another forum [2] against a bankruptcy trustee 22 or other officer appointed by the bankruptcy court [3] for acts done in the officer’s official 23 capacity.” 24 Substantially similar claims with additional defendants to the ones in the Central District were 25 filed in the Bankruptcy Court for the Eastern District of California before being transferred to this 26 Court. Defendants David Cooper, Barry Goldner, Lisa Holder, Klein Denatale Goldner Cooper 27 Rosenlieb and Kimball LLP, Connie Parker, and Jeffrey Vetter (“Vetter/KDG Defendants”) have Crown Vantage, Inc., v. Fort James Corp., 421 F.3d 963, 970 (9th Cir. 2005). 28 11 1 filed a motion to dismiss these claims.3 The Burton doctrine is not a bar to subject matter 2 jurisdiction in this Court, however, because the matter is here with leave of the bankruptcy court. 3 Nevertheless, the Court grants this motion to dismiss as Agha-Khan has no claims for 4 relief against Jeffrey Vetter and his attorneys because they are protected by California’s absolute 5 litigation privilege. This privilege applies to communications or publications made in a judicial 6 proceeding. See Cal. Civ. C. § 47(b). Consequently, California’s litigation privilege bars the 7 claims against the Vetter/KDG Defendants because Agha-Khan’s theory against them is that she 8 was harmed by acts taken in her bankruptcy proceedings. 9 Vetter/KDG Defendants participated in the “illegal” reopening of her bankruptcy case. 10 Agha-Khan states no factual allegations against the Vetter/KDG Defendants, distinct from 11 communications and pleadings in the bankruptcy proceedings, other than making conclusory and 12 fanciful allegations that the Vetter/KDG Defendants recruited other defendants, including virtually 13 every lawyer and professional who Agha-Khan had any dealings with, in a massive conspiracy 14 against her. In view of that, the Vetter/KDG Defendants are protected by California’s absolute 15 litigation privilege. Specifically, she alleges the 16 Agha-Khan now also brings claims against the United States Trustee’s Office employees 17 August Landis, Mark Pope, Gregory Powell, Robin Tubesing, and Antonia Darling. 4 United 18 States trustees are protected by a quasi-judicial immunity for acts and conduct in the course of 19 their employment. See Balser v. Dep’t of Justice, 327 F.3d 903, 909 (9th Cir. 2003). The 20 complaint only alleges acts by the current and former members of the United States Trustee’s 21 Office that were taken in the course of their employment – specifically, the filing of an application 22 to reopen Agha-Khan’s Chapter 7 bankruptcy proceeding and the rejection of Agha-Khan’s 23 misconduct complaint(s). 24 protected by quasi-judicial immunity. Additionally, the allegations against the Trustee’s Office Consequently, these United States Trustee’s Office employees are 25 26 27 28 3 Lisa Holder, Barry Goldner, Connie Parker and David Cooper are attorneys and law partners with Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, LLP (“Klein, DeNatale”). Klein, DeNatale are the bankruptcy court-approved attorneys for Jeffrey Vetter, as Chapter 7 Trustee for the estate of Salma Agha, United States Bankruptcy Court Eastern District of California Case No. 10-16183. 4 These defendants also note that the complaint and the summons were not properly served on them. See Fed. R. Civ. P. 4. 12 1 employees, and the Vetter/KDG Defendants, violate Rule 8(a)(2) and Rule 9(b) and are so fanciful 2 that any amendment would be futile. The Court therefore grants the United States Trustee’s 3 Office employees and the Vetter/KDG Defendants’ motions to dismiss (Docs. 5, 96) with 4 prejudice. 5 Motion to Dismiss (Doc. 38) 6 Agha-Khan has also named as defendants Gary Grossman, Bob Grossman, Robert 7 Grossman, and Lerer Brothers Inc. in this Court. Gary Grossman has since filed a motion to 8 dismiss (Doc. 38) as well as a motion to strike (Doc. 37). Gary Grossman, Bob Grossman, Robert 9 Grossman, and Lerer Brothers Inc. previously successfully defended a similar lawsuit by 10 Agha-Khan in the San Francisco Superior Court. See Judge Ronald Quidachay’s Order Sustaining 11 Gary Grossman’s Demurrer, No. CGC-14-540428 (Super. Ct. Cal. February 4, 2015). In that 12 case, Agha-Khan sued Garry Grossman, Bob Grossman, Robert Grossman, and Lerer Brothers 13 Inc. for fraud, misrepresentation, theft, and colluding with others to steal from her and for 14 remedies arising from the same set of facts that are at issue in this case. The complaint was 15 dismissed with prejudice. Consequently, the present allegations against the defendants are barred 16 by res judicata. See San Diego Police Officers’ Ass’n v. San Diego City Employee’s Retirement 17 System, 568 F.3d 725, 734 (9th Cir. 2009) (a federal court must give a state court judgment the 18 same preclusive effect that would be given to that judgment under the law of the state in which 19 judgment was entered). The motion to dismiss (Doc. 38) is therefore granted with prejudice. The 20 motion to strike by Gary Grossman (Doc. 37) is denied as moot as it pertains to him. 21 Motion to Dismiss (Doc. 14) 22 Agha-Khan also named the new defendants Jodie Goodman, Patricia Laffin-Miko, Mother 23 Lode Holding Company, Placer Title Company, and Theresa Roberts in this Court. 24 Goodman, Patricia Laffin-Miko, and Theresa Roberts are all employees or legal advisors to 25 Mother Lode Holding Company and Placer Title Company. They have filed a joint motion to 26 dismiss. Doc. 14. The motion to dismiss argues that Agha-Khan has failed to comply with Rule 27 8(a) and failed to plead fraud with the required particularity. The Court agrees. Here, Plaintiff 28 fails to assert any facts whatsoever against Mother Lode Holding Company, Jodie Goodman, 13 Jodie 1 Patricia Laffin-Miko, and Theresa Roberts other than whom they are. The sole allegation pled 2 specifically against Placer Title Company relates to actions Placer took as an escrow agent in a 3 cancelled escrow, but does not legally or factually connect this to any of her causes of action. 4 Thus, the complaint fails to set forth a short and plain statement of the claim showing how 5 plaintiff is entitled to relief as required to comply with Rule 8(a)(2) and fails to allege fraud with 6 the particularity required by Rule 9(b). Agha-Khan was given two opportunities to amend her 7 complaint based upon the same nucleus of facts in the Central District yet failed to state any 8 cognizable claims in that court. Furthermore, the allegations in the present complaint are so 9 fanciful that any amendment would be futile. Accordingly, the Court grants this motion to dismiss 10 (Doc. 14) with prejudice. 11 Motions for Sanctions (Docs. 43, 44) 12 Agha-Khan has filed a motion for sanctions on defendants Placer Title Company, Mother 13 Lode Holding Company, Jodie Goodman, Theresa Roberts, and Patricia Laffin-Miko and a motion 14 for sanctions on defendants CitiBank, N.A., CR Title Services Inc., CitiMortgage Inc., Wolf & 15 Wyman LLP, Brian Gunn, Andrew Bao, and Heather Kim. Agha-Khan seeks sanctions against 16 these parties under 28 U.S.C. § 1927, Chambers v. Nasco Inc., 501 U.S. 32 (1991), and Federal 17 Rule of Civil Procedure 11. 18 frivolous. Defendants filed successful motions to dismiss, have not exhibited bad faith, and have 19 not unreasonably multiplied the proceedings in any way. Indeed, Agha-Khan is the party that is 20 unreasonably multiplying proceedings and exhibiting bad faith by filing a multitude of meritless 21 pleadings and motions in a variety of courts against nearly every single person ever to be involved 22 in her bankruptcy proceedings in any manner or fashion. Agha-Khan’s motions for sanctions 23 (Docs. 43, 44) are therefore denied. The Court finds that Agha-Khan’s motions for sanctions are 24 Motion to Transfer the Action to the Central District (Doc. 53) 25 Agha-Khan filed a motion to transfer the action from the Eastern District to the Central 26 District due to a conflict of interest with her second notice of related action pending in the Central 27 District. Agha-Khan alleges two grounds for this motion. Doc. 53. One is that there is a related 28 action pending in the Central District of California. Id. As discussed previously, the Central 14 1 District has already dismissed Agha-Khans’s action in that court. 2 The other alleged ground for transfer is that Judge Ishii and other judges of the Eastern 3 District of California allegedly have a conflict of interest due to several co-workers and friends 4 being named as defendants in the case. Id. Specifically, Agha-Khan argues that there is a conflict 5 of interest in the Eastern District because Judge Clement, Judge Lee, and Judge Landis are in the 6 same building as Judge Ishii and possibly other staff and defendants. Id. The governing statute 7 for judicial disqualification provides that “[a]ny justice, judge, or magistrate judge of the United 8 States shall disqualify himself in any proceeding in which his impartiality might reasonably be 9 questioned.” 28 U.S.C. § 455(a). The test is “whether a reasonable person with knowledge of all 10 the facts would conclude that the judge's impartiality might reasonably be questioned.” Milgard 11 Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 714 (9th Cir. 1990), quoting Herrington v. 12 Sonoma Cnty., 834 F.2d 1488, 1503 (9th Cir.1987) (internal quotation marks omitted). Under 13 section 455(b)(1), a federal judge should be disqualified if the judge “has a personal bias or 14 prejudice concerning a party.” 11 U.S.C. § 455(b)(1). “The negative bias or prejudice . . . must be 15 grounded in some personal animus or malice that the judge harbors against [a party], of a kind that 16 a fair-minded person could not entirely set aside when judging certain persons or causes. 17 Moreover, recusal is required only if actual bias or prejudice is proved by compelling evidence.” 18 Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996) (citation omitted) (internal quotation marks 19 omitted). In deciding a disqualification motion, the court exercises its discretion. Focus Media, 20 Inc. v. Nat'l Broad. Co., 378 F.3d 916, 922 (9th Cir. 2004) (stating that a court's denial of a 21 disqualification motion is reviewed for abuse of discretion), citing United States v. Wilkerson, 208 22 F.3d 794, 797 (9th Cir. 2000). 23 Here, Agha-Khan speculates about personal relationships among the judges of the Eastern 24 District that might give rise for a reasonable observer to question the impartiality of the judges. 25 Section 455(a), however, does not require recusal based on speculation. See Clemens v. U.S. Dist. 26 Court for Central Dist. Of California, 428 F.3d 1175, 1180 (9th Cir. 2005). Further, “mere 27 familiarity with the defendant(s)” is not ordinarily sufficient to require a section 455(a) recusal. 28 Id. at 1178, quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). Agha-Khan argues that 15 1 the fact that Judge Ishii has not already transferred the case to the Central District because of 2 alleged “extreme Judicial corruption” in the Eastern District is evidence of a conflict of interest. 3 She attempts to bootstrap her argument with the underlying allegations against the judicial 4 defendants in the matter. This line of reasoning is circular and unpersuasive. The Court finds 5 there are no grounds for disqualification and denies Agha-Khan’s motion to transfer the action to 6 the Central District (Doc. 53). 7 Motion for Disclosure of Names (Doc. 71) 8 Agha-Khan has a filed a motion for disclosure of actual names of judges making the 9 recommendation and signing the “internal transfer” order of her Eastern District bankruptcy 10 related adversary case no. 14-01155 to Eastern District case no. 15-00042-AWI. Agha-Khan 11 premises this motion on Federal Rule of Civil Procedure 60(b)(6) and argues that she is seeking 12 clarification for “any other reason that justifies relief.” She argues that clarification is necessary 13 here because of “extreme corruption that exists in the Eastern District Judicial System.” The 14 recommendation that reference be withdrawn pursuant to 28 U.S.C. § 157(d), however, was 15 clearly made by the Chief Bankruptcy Judge of the Eastern District of California. See Doc. 1. 16 There is only one Chief Bankruptcy Judge in the Eastern District of California. The order 17 withdrawing reference of the matter from bankruptcy court pursuant to 28 U.S.C. § 157(d) was 18 clearly made by Chief Judge Morrison England of the Eastern District of California. See Doc. 3. 19 The Court finds that no clarification is necessary. Agha-Khan’s motion for disclosure of names 20 (Doc. 71) is denied. 21 Motion for Order Returning Possession of Real Property (Doc. 75) 22 Agha-Khan filed a motion for order returning possession of her home, real property located 23 at 11622 Harrington Street, Bakersfield, CA 93311. Like her other filings, Agha-Khan’s motion is 24 convoluted, hyperbolic, and disorganized, but she seems to argue that the defendants fraudulently 25 performed her bankruptcy proceedings and the subsequent foreclosure sale of her home and 26 consequently she is entitled to the return of her home. The allegations here parallel those made in 27 her underlying complaint. She argues that defendants CitiMortgage Inc., CR Title Services Inc., 28 Pite Duncan LLP, Brian Gunn, Eddie Jimenez, Brian Paino, Wolfe & Wyman LLP, Andrew Bao, 16 1 Heather Kim, Brian Gunn, Re Max LLC, Re Max Magic, and Debbie Banducci all conspired with 2 CitiBank, N.A., to illegally reopen her bankruptcy proceeding and steal her property. Since the 3 allegations against these defendants in her complaint have been dismissed, she is not entitled to 4 the relief that she seeks. Her motion for order returning possession of real property (Doc. 75) is 5 therefore denied. 6 Motion for Disqualification of Eastern District (Doc. 107) 7 Agha-Khan filed a largely duplicative motion to disqualify the Eastern District from her 8 case and all its related matters. For the reasons discussed above in regards to Agha-Khan’s motion 9 to transfer the action to the Central District, this motion (Doc. 107) is denied as well. 10 ORDER 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Defendants’ motions to dismiss (Docs. 5, 7, 13, 14, 38, 39, 96) are GRANTED; 13 2. Defendants’ motions to strike (Docs. 8, 37) are DENIED AS MOOT; 14 3. Plaintiff’s pending motions (Docs. 43, 44, 53, 71, 75, 107) are DENIED; and 15 4. Defendants the United States of America, Fredrick Clement, Bruce Breitman, BBG 16 Ltd, the Estate of Peter Zouras, David N. Chandler (aka David N. Chandler Sr.), David 17 N. Chandler PC, CitiMortgage Inc., CR Title Services Inc., Re Max LLC, Debbie 18 Banducci, Re Max Magic, Judge Richard Lee, the Law Offices of Peter J. Zouras, 19 David N. Chandler Jr., Terry Carlson, Terry Carlson Law Firm, Wolfe & Wyman, 20 LLP, Brian Gunn, Andrew Bao, Heather Kim, Pite Duncan LLP, Eddie Jimenez, Brian 21 Paino, Michael Krahenbuhl, Richard Monahan, Gattuso & Kummer Law, Dixon 22 Kummer, CitiBank, N.A., Wilmington Trust Company, Re Max Holdings Inc., David 23 Cooper, Barry Goldner, Lisa Holder, Klein Denatale Goldner Cooper Rosenlieb and 24 Kimball LLP, Connie Parker, Jeffrey Vetter, August Landis, Mark Pope, Gregory 25 Powell, Robin Tubesing, Antonia Darling, Brian Grossman, Bob Grossman, Robert 26 Grossman, Lerer Brothers Inc., Jodie Goodman, Patricia Laffin-Miko, Mother Lode 27 Holding Company, Placer Title Company, and Theresa Roberts are DISMISSED from 28 the case with prejudice. 17 1 2 3 IT IS SO ORDERED. Dated: September 28, 2015 SENIOR DISTRICT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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