Katoozian v. Bank of America CA4/1 ( 2014 )

Filed 6/18/14 Katoozian v. Bank of America CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALEXANDER A. KATOOZIAN, D064482
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2012-00103693-
CU-FR-CTL)
BANK OF AMERICA N.A. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Randa Trapp, Judge. Affirmed.
Law Offices of Herbert Papenfuss and Herbert Papenfuss for Plaintiff and
Appellant.
Locke Lord, Conrad V. Sison and Daniel A. Solitro for Defendants and
Respondents.
Alexander A. Katoozian filed an action for fraud against Bank of America N.A.
(BofA) and Select Portfolio Servicing, Inc. (SPS; together with BofA, defendants),
alleging BofA produced a forged document during a separate unlawful detainer action
against him. The trial court sustained defendants' demurrer to Katoozian's fraud
complaint without leave to amend on the grounds that it was barred by the litigation
privilege and Katoozian failed to plead the elements of a fraud claim. Katoozian appeals,
contending (1) the litigation privilege does not apply to fraud causes of action, and (2) his
action is not barred by res judicata. We conclude Katoozian's claims against defendants
were barred by the litigation privilege. Accordingly, the judgment is affirmed and we
need not address Katoozian's res judicata argument.
FACTUAL AND PROCEDURAL BACKGROUND
In accordance with the principles governing our review of a ruling sustaining a
demurrer, the following factual recitation is taken from the allegations of Katoozian's
complaint. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120, 125.)
After BofA foreclosed on Katoozian's property, it filed an unlawful detainer action
against him. In response to discovery requests in the unlawful detainer action, BofA
produced an Assignment of Deed of Trust (the Assignment). The discovery response that
included the Assignment was verified by Dana Crawford, an employee of SPS.
According to Katoozian, the Assignment was "false and fraudulent" because it
purported to assign his note from LaSalle Bank to BofA in 2006, but BofA did not
become the successor to LaSalle Bank until 2008. After receiving the Assignment from
BofA, Katoozian filed a "Motion in Limine to be heard at the scheduled trial time to
dismiss the Complaint of [BofA] based on the fraudulent Assignment." Before that
motion was heard, BofA dismissed its unlawful detainer action.
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Thereafter, Katoozian filed the instant fraud action against BofA and SPS, the
servicing agent and custodian of records for BofA. Katoozian's fraud causes of action
were based on allegations that BofA produced a false and fraudulent document in the
unlawful detainer action.
Defendants demurred to Katoozian's complaint, arguing his claims were barred by
the litigation privilege and the doctrine of res judicata. Defendants also asserted that
Katoozian failed to plead the requisite elements of his fraud claims. The trial court
sustained the demurrer without leave to amend on the basis that the action was barred by
the litigation privilege. The trial court also found that Katoozian did not particularly
allege reliance and damages.
DISCUSSION
I. Standard of Review
" 'On appeal from an order of dismissal after an order sustaining a demurrer, our
standard of review is de novo, i.e., we exercise our independent judgment about whether
the complaint states a cause of action as a matter of law.' " (Los Altos El Granada
Investors v. City of Capitola (2006) 139 Cal. App. 4th 629, 650.) "A judgment of
dismissal after a demurrer has been sustained without leave to amend will be affirmed if
proper on any grounds stated in the demurrer, whether or not the court acted on that
ground." (Carman v. Alvord (1982) 31 Cal. 3d 318, 324.) In reviewing the complaint,
"we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those
that are judicially noticeable." (Howard Jarvis Taxpayers Assn. v. City of La Habra
(2001) 25 Cal. 4th 809, 814.)
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Further, "[i]f the court sustained the demurrer without leave to amend, as here, we
must decide whether there is a reasonable possibility the plaintiff could cure the defect
with an amendment. [Citation.] If we find that an amendment could cure the defect, we
conclude that the trial court abused its discretion and we reverse; if not, no abuse of
discretion has occurred. [Citation.] The plaintiff has the burden of proving that an
amendment would cure the defect." (Schifando v. City of Los Angeles (2003) 31 Cal. 4th
1074, 1081.) "[S]uch a showing can be made for the first time to the reviewing court
[citation] . . . ." (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal. App. 4th
700, 711.) With these principles in mind, we consider Katoozian's argument.
II. Litigation Privilege
Katoozian argues the trial court erred in sustaining defendants' demurrer because
the litigation privilege does not apply to fraud causes of action. We disagree.
The litigation privilege set forth in Civil Code section 47, subdivision (b)(2),
affords litigants and witnesses "the utmost freedom of access to the courts without fear of
being harassed subsequently by derivative tort actions." (Silberg v. Anderson (1990) 50
Cal. 3d 205, 213.) It applies to "any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the
objects of the litigation; and (4) that have some connection or logical relation to the
action. [Citations.]" (Id. at p. 212.)
The litigation privilege is absolute and broadly applied regardless of malice.
(Jacob B. v. County of Shasta (2007) 40 Cal. 4th 948, 955; Action Apartment Assn., Inc. v.
City of Santa Monica (2007) 41 Cal. 4th 1232, 1241 [litigation privilege applies to "all
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publications irrespective of their maliciousness"].) It even applies to fraudulent or
perjured communications, as long as the statements pertain to the litigation. (Carden v.
Getzoff (1987) 190 Cal. App. 3d 907, 915 [privilege protects expert witness accused of
making false statements]; Steiner v. Eikerling (1986) 181 Cal. App. 3d 639, 642-643,
[privilege protects forgery of will and presentation of forged document to court].)
Without any citation to authority, Katoozian argues that "[t]he litigation privilege
applies only as a defense against actions for libel and slander." This argument has long
been rejected. " ' "Although originally enacted with reference to defamation actions alone
[citation], the privilege has been extended . . . to all torts other than malicious
prosecution. [Citations.] Thus, the privilege has been applied to suits for fraud
[citations], negligence and negligent misrepresentation [citation], and interference with
contract [citation]." [Citation.]' " (Seltzer v. Barnes (2010) 182 Cal. App. 4th 953, 969.)
Katoozian's complaint against defendants was based entirely on his allegation that
BofA produced a "false and fraudulent" document, the Assignment, in response to a court
order in the unlawful detainer litigation. Production of the Assignment was a
communication in the course of the unlawful detainer litigation to achieve the object of
the litigation. Further, the Assignment was directly connected to the litigation in that the
court ordered its production. (See Silberg v. Anderson, supra, 50 Cal.3d at p. 212.)
Thus, the communication comes squarely within the bar of the litigation privilege.
We also reject Katoozian's argument that we should not apply the litigation
privilege broadly to "allow[] attorney[s] and/or litigants to make up evidence, create false
evidence, [and] use[] forged documents in litigation without any consequences." If the
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allegations in Katoozian's complaint are true, we certainly do not condone the alleged use
of a fraudulent document in litigation. However, the litigation privilege has been broadly
applied to cover false statements and forged documents so long as they pertain to the
litigation. (Carden v. Getzoff, supra, 190 Cal.App.3d at p. 915; Steiner v. Eikerling,
supra, 181 Cal.App.3d at pp. 642-643.) When there is a good faith intention to bring a
suit, even malicious publications " 'are protected as part of the price paid for affording
litigants the utmost freedom of access to the courts.' " (Carden, at p. 915.)
In sum, Katoozian has failed to state a viable cause of action against the
defendants and no amendment can cure that result as his claims are barred by the
litigation privilege. Accordingly, the trial court properly sustained defendants' demurrer
without leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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