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Agha-Khan v. Bank of America

United States District Court, E.D. California

June 30, 2017

SALMA AGHA-KHAN, Plaintiff,
v.
BANK OF AMERICA, et al., Defendants.

          ORDER GRANTING MOTIONS TO DISMISS (DOC. NOS. 26, 37, 48, 53, 73, 84, 85, 90, 91, 92, 93, 94, 95, 96, 97)

         Plaintiff Salma Agha-Khan, proceeding pro se, filed this action on December 15, 2016, in the United States Bankruptcy Court of the Eastern District of California naming roughly thirty-two defendants, including two U.S. Bankruptcy Judges, and an additional 100 Doe defendants. (Doc. No. 1 at 10-11.) On February 24, 2017, the reference of this action to the Bankruptcy Court was withdrawn and the case was reassigned to this court for all further proceedings. (Doc. No. 13.)

         On March 14, 2017, defendants CitiMortgage, Inc., CitiBank, N.A., CitiCorp, CitiGroup, Inc., CR Title Services, Inc., Travis Nurse, Wolfe & Wyman LLP, Andrew Bao, Meagan Tom, and Heather Kim (collectively, the “CitiBank defendants”) filed a motion to dismiss. (Doc. No. 26.) The following day, these same defendants filed a motion to declare plaintiff a vexatious litigant. (Doc. No. 37.) On March 28, 2017, U.S. Bankruptcy Judges Fredrick Clement and Richard Lee filed a motion to dismiss. (Doc. No. 48.) On April 6, 2017, defendants Aldridge Pite, LLP, sued herein as Pite Duncan, LLP, Eddie Jimenez, and Brian Paino (collectively, the “Aldridge Pite defendants”) filed a motion to dismiss. (Doc. No. 53.)[1] On April 11, 2017, defendants Bank of America, N.A. and BAC Home Loans Servicing, Inc. joined in this latter motion to dismiss. (Doc. No. 59.) Finally, on May 3, 2017, plaintiff filed an ex parte motion for order to disqualify the entire bench of the Eastern District of California from presiding over this action. (Doc. No. 73.)

         On May 24, 2017, plaintiff filed oppositions to the pending motions to dismiss. (Doc. Nos. 79 and 81.) On June 2, 2017, shortly before the scheduled hearing on the pending motions, plaintiff also filed requests for entry of default judgment against numerous defendants as well as a motion to disqualify the undersigned with a motion for order shortening time in connection with the latter motion. (Doc. Nos. 84, 85, 90, 91, 92, 93, 94, 95, 96, 97.)

         On May 19, 2017, the court issued an order requiring plaintiff to show cause in writing by June 2, 2017 “why the matter should not be dismissed without leave to amend as to all defendants.” (Doc. No. 77 at 44.) The order to show cause noted that plaintiff's pro se complaint appeared to fail to comply with the basic requirements imposed under Federal Rules of Civil Procedure (“Rule”) 4(m), 8(a), and 9(b) and 28 U.S.C. § 1915(e)(2)(B) and that judicial immunity appeared to clearly apply to the two named U.S. Bankruptcy Judge defendants in light of the nature of the complaint's allegations as to them. (Id. at 2-4.) The order to show cause directed plaintiff to “concisely explain [in ten pages or less] why [she] believes she is legally entitled to pursue to this action despite the patent defects in the complaint noted above.” (Id. at 4.)

         On June 2, 2017, plaintiff responded to the order to show cause. (Doc. No. 86.) Therein plaintiff noted that her complaint “comprises 317 pages” and therefore she could not address the issues in the order to show cause within the ten page limit and requested that the court incorporate the arguments set forth in her prior pleadings. (Id. at 3.) Plaintiff, however, offered no substantive or meaningful response to her failure to comply with the basic requirements imposed under Rules 4(m), 8(a), and 9(b) and 28 U.S.C. § 1915(e)(2)(B) or to the apparent applicability of judicial immunity to the two named judicial defendants. Instead, plaintiff repeated her arguments that the undersigned was automatically disqualified from presiding over the present action and that this court lacked jurisdiction because plaintiff had named the undersigned as a defendant in a case she recently filed in the United States District Court for the Central District of California. (Id.)

         On June 6, 2017, all the pending motions and the order to show cause came before the court for hearing. (Doc. Nos. 51, 55, 75.) Plaintiff appeared telephonically on her own behalf. Attorney Brian Gunn appeared telephonically on behalf of the CitiBank defendants. Attorney Eddie Jimenez appeared telephonically on behalf of the Aldridge Pite defendants. Attorney Adam Barasch appeared telephonically on behalf of Bank of America, N.A. and BAC Home Loans Servicing, Inc. Attorney Michael Hogue appeared telephonically on behalf of GMAC Mortgage, LCC and OCWEN Financial Corp. Assistant United States Attorney Philip Scarborough appeared telephonically on behalf of U.S. Bankruptcy Judges Clement and Lee. The motions were taken under submission. (Doc. No. 99.)

         For the reasons stated below, plaintiff's motions to disqualify the entire Eastern District of California and, more specifically, the undersigned from presiding over this action will be denied, defendants' motion to declare plaintiff a vexatious litigant will be denied, plaintiff's requests for entry of default will be denied, and defendants' motions to dismiss will be granted. Finally, all claims and defendants will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) based upon the court's determination that this action is frivolous.

         I. PLAINTIFF'S RECUSAL MOTIONS

         The court will first address plaintiff's recusal motions. Specifically, plaintiff seeks to disqualify the entire bench of the U.S. District Court for the Eastern District of California, arguing that she “cannot proceed under the extreme bias and prejudice handed to her by judiciary in Eastern District.” (Doc. No. 73 at 5.) Plaintiff has also sought to recuse the undersigned on similar grounds. (Doc. No. 97.) Under 28 U.S.C. § 144, “whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144; see also Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008).

         Under 28 U.S.C. § 455(a), “[a]ny . . . judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Pesnell, 543 F.3d at 1043. Title 28 U.S.C. § 455(b) provides in relevant part, “[h]e shall also disqualify himself in the following circumstances: [w]here he has a personal bias or prejudice concerning a party . . .” 28 U.S.C. § 455(b)(1).

         Under both recusal statutes, the substantive standard is “[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” Pesnell, 543 F.3d at 1043 (citing United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997). However, the bias must arise from an extrajudicial source and cannot be based solely on information gained in the course of the proceedings. Id. (citing Liteky v. United States, 510 U.S. 540, 554-56 (1994). “Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004) (quoting Liteky, 510 U.S. at 555.)

         Here, plaintiff's motion for disqualification is apparently based on her belief that the Eastern District is biased because U.S. District Judge Lawrence O'Neill “issue[d] an arrest warrant based on my pleadings that are absolutely privileged [and] seeks to prosecute Plaintiff's criminally for contempt for what Plaintiff's write in a pleading and for the exercise of their civil rights.” (Doc. No. 73 at 23.) Plaintiff also argues that the issuance of the order to show cause in this case is evidence of the undersigned's “personal vendetta.” (Doc. No. 97 at 3-4.) Not only is plaintiff incorrect, but she has failed to present any facts to suggest impartiality or bias on the part of the assigned judge or the entire bench of this court based upon anything outside of the court's legal rulings.[2]

         Accordingly, plaintiff's motions to disqualify the entire bench of the Eastern District of California and the motion to disqualify the undersigned will be denied.

         II.MOTIONS TO DISMISS

         Background

         In the present action, plaintiff asserts claims for: (1) bankruptcy fraud under 18 U.S.C. § 157; (2) making false oaths under 18 U.S.C. § 152; (3) fraud; (4) violation of 42 U.S.C. §§ 1982 and 1983; (5) violation of due process under the United States, California, and Nevada constitutions; (6) negligence; (7) conversion; (8) trespass to chattel; (9) defamation; (10) false light; (11) slander of title; (12) violations of Nevada Revised Statutes 645; (13) violations of California Penal Code § 115, California Civil Code § 2945, et seq., and other California and United States banking and lending statutes; (14) violations of the California Business and Professions Code; and (15) violations of FCRA, FERA, TILA and 18 U.S.C. § 1028. (Doc. No. 1 at 10-11.) Plaintiff alleges that defendants filed false claims and forged documents containing fabricated statements in order to wrongfully foreclosure on her listed properties in Las Vegas, Nevada and Bakersfield, California. (Id. at 21-22.) Plaintiff also alleges that defendants collected mortgage payments from her without any legal right to do so and enrolled her in a loan modification “for a loan they legally did not have, ” pushing her into bankruptcy. (Id. at 22.)

         The CitiBank defendants now move to dismiss arguing that the complaint fails to state any cognizable claim and fails to meet the pleading requirements of Federal Rules of Civil Procedure (“Rule”) 8(a) and 9(b). (Doc. No. 27 at 2-3.) Furthermore, they argue the claims against the CitiBank defendants are barred by claim preclusion because they are based on the same subject property, mortgage loan, loan modification discussions, foreclosure proceedings, and unlawful detainer action and subsequent writ of possession that have already been litigated to conclusion in Khan v. CitiMortgage, Inc., 975 F.Supp.2d 1127 (E.D. Cal. 2013). (Id.) Finally, they argue the claims against Wolfe & Wyman and its attorneys are barred by the litigation privilege found in California Civil Code § 47(b). (Id. at 3.)

         U.S. Bankruptcy Judges Clement and Lee also move to dismiss, arguing that they enjoy absolute judicial immunity for the actions plaintiff challenges taken in connection with her bankruptcy proceedings. (Doc. No. 48-1 at 2.) They also contend that plaintiff's claims against them are duplicative of claims upon which this court previously entered a judgment against plaintiff, which judgment was affirmed by the Ninth Circuit. See Agha-Khan v. United States, No. 1:15-cv-00042-AWI, 2015 WL 5734380, at *6 (E.D. Cal. Sept. 29, 2015), aff'd, No. 16-15164, 2017 WL 1046207 (9th Cir. Mar. 20, 2017). They also note that plaintiff has failed to plead fraud with the particularity required by Rule 9(b). (Id.)

         The Aldridge Pite defendants move to dismiss arguing that plaintiff's complaint fails to plead facts with particularity in compliance with Rule 8, fails to state a claim, and otherwise fails to allege facts as to specific Aldridge Pite defendants. (Doc. No. 53-1 at 2.) They also contend that plaintiff failed to properly serve the summons and complaint pursuant to Rule 4. (Id.)

         Plaintiff has opposed the pending motions to dismiss in 95-page and a 123-page, disjointed and rambling oppositions. (Doc. Nos. 79 and 81.) Therein, plaintiff argues that she has met the pleading standards imposed by the Federal Rules of Civil Procedure and contends that defendants have altered the bankruptcy statute and attached forged copies of title documents. (Id.) Plaintiff also contends in conclusory fashion that U.S. Bankruptcy Judges Lee and Clement are not entitled to judicial immunity because they have engaged in fraud upon the court and because misusing court and public resources are not judicial functions. (Id.)

         Legal Standard

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not ...


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