Colebrook v. McGinity CA2/6 ( 2023 )

Filed 12/12/23 Colebrook v. McGinity CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
TEENA COLEBROOK, 2d Civil No. B321630
(Super. Ct. No. 21CV-0123)
Plaintiff and Appellant, (San Luis Obispo County)
v.
TIMOTHY MCGINITY et al.,
Defendants and
Respondents.
Appearing in propria persona, Teena Colebrook purports to
appeal from an order sustaining respondents’ demurrer to her
complaint without leave to amend. We construe the order as
incorporating a judgment of dismissal, treat the appeal as taken
from that judgment, and affirm.1
1 The record on appeal does not include a judgment
dismissing appellant’s complaint. Respondents assert, “Although
a proposed judgment was submitted to the trial court at its
request, it does not appear judgment was ever entered.” “This
appeal thus appears to have been taken from the order
Respondents are an attorney and the attorney’s law firm.
They represented CIT Bank, N.A. (CIT) in litigation commenced
by appellant. Appellant filed several lawsuits against CIT, but
lost all of them. Respondents allege that the present action “is
now Appellant’s eighth lawsuit relating to [CIT’s] foreclosure of
her property.”
In Colebrook v. CIT Bank, N.A. (2021) 64 Cal.App.5th 259(Colebrook II), we affirmed the judgment of dismissal entered in
appellant’s latest lawsuit against CIT. We concluded that the
lawsuit was barred by the doctrine of res judicata. In the instant
appeal appellant seeks to vindicate against CIT’s attorneys the
same primary right she unsuccessfully sought to vindicate
against CIT. But it is questionable whether respondents are in
privity with their client for res judicata purposes. (See Kerner v.
Superior Court (2012) 206 Cal.App.4th 84, 126-128.) “[C]laim
preclusion [i.e., res judicata,] can be asserted only by a party in
the first action or someone in privity with a party in the first
action.” (Grande v. Eisenhower Medical Center (2022) 13 Cal.5th
313, 318 (Grande).2
sustaining [respondents’] demurrer . . . without leave to amend.
‘Orders sustaining demurrers are not appealable.’ [Citation.]
But ‘an appellate court may deem an order sustaining a demurrer
to incorporate a judgment of dismissal.’” (Zipperer v. County of
Santa Clara (2005) 133 Cal.App.4th 1013, 1019.)
2 “‘[P]rivity’ is not merely a term that describes a close
relationship between two entities; it implies that a judgment
against one could have been used against the other, even though
that entity was not a party to the judgment.” (Grande, supra, 13
Cal.5th at pp. 324-325.) Privity may also be based on a concept of
derivative liability: “‘[w]hen a defendant's liability is entirely
derived from that of a party in an earlier action, claim preclusion
2
We need not resolve the privity issue. The litigation
privilege protects respondents from appellant’s claims.
Accordingly, we affirm.
We could hold appellant in contempt and impose punitive
sanctions for her unfounded attack on the integrity of this court.
We decline to do so in this case, but warn her that she cannot
expect such forbearance from us in the future.
Procedural Background through the
Date of Our Decision in Colebrook II
The following procedural background is taken from our
prior opinion, Colebrook II, supra, 64 Cal.App.5th 259:
“In 2004 a bank loaned appellant $400,000. The loan was
evidenced by a promissory note signed by appellant. The note
was secured by a deed of trust encumbering appellant’s real
property in Hawthorne, California. The note was assigned to
[CIT]. [¶] In 2013 appellant defaulted on the note. She was
served with notice of default and election to sell pursuant to the
deed of trust. The Hawthorne property was sold at public auction
on April 10, 2015.” (Colebrook II, supra, 64 Cal.App.5th at pp.
261-262.)
In 2011, 2014, and 2015 appellant filed lawsuits against
CIT concerning the $400,000 loan and the deed of trust securing
that loan. “For various reasons, [the] preforeclosure 2011 lawsuit
was dismissed in federal court with prejudice and without leave
to amend. The 2014 lawsuit was dismissed in federal court on
res judicata grounds without leave to amend. In the 2014 lawsuit
bars the second action because the second defendant stands in
privity with the earlier one.’” (Id. at pp. 330-331.)
3
the United States District Court concluded: ‘[I]n both [the 2011
and 2014] Complaints [appellant] brings causes of action that
resulted from [CIT’s] alleged wrongful acts in connection with the
creation and transfer of the same loan. These Complaints arise
from the same transactional nucleus of facts and, therefore, the
2011 Lawsuit bars claims brought in this [the 2014] Complaint.’
The Ninth Circuit Court of Appeals found appellant’s appeal
‘frivolous.’ It summarily affirmed the district court’s order
granting [CIT’s] motion to dismiss.” (Colebrook II, supra, 64
Cal.App.5th at p. 262.)
“The 2015 third lawsuit was filed in Los Angeles County
Superior Court. The trial court sustained [CIT’s] demurrer
without leave to amend, ruling that the principles of res judicata
and collateral estoppel barred all of the causes of action.
[¶] [Division 2 of the Second Appellate District] affirmed.
(Colebrook[, et al]. v. CIT Bank, N.A. (Apr. 25, 2018, B279942),
[2018 WL 1940330] [nonpub. opn.] [(Colebrook I)].) It concluded
that the doctrine of res judicata barred the 2015 lawsuit’s causes
of action because they were either adjudicated in the 2011 and
2014 lawsuits or could have been raised in the 2014 lawsuit. The
court reasoned that all of the actions involved the same injury –
the loss of appellant’s interest in the Hawthorne property.”
(Colebrook II, supra, 64 Cal.App.5th at p. 263.)
“In 2019 appellant . . . filed a complaint [against CIT] . . .
alleging that the promissory note was ‘fully satisfied on or about
April 16th, 2015,’ six days after the sale of the property. Relying
upon Civil Code section 2941, subdivision (b)(1), appellant sought
declaratory relief that [CIT] must ‘execute and deliver to the
trustee [pursuant to the deed of trust] the original note, deed of
trust, request for a full reconveyance, and other documents as
4
may be necessary to reconvey, or cause to be reconveyed, the deed
of trust.’ [¶] [CIT] demurred to the complaint. The trial court
sustained the demurrer based on, inter alia, the doctrine of res
judicata.” (Colebrook II, supra, 64 Cal.App.5th at p. 262.)
Appellant appealed. We decided the appeal in Colebrook II.
Our Decision in Colebrook II
In Colebrook II we held, “Pursuant to the doctrine of res
judicata, the [prior court decisions] constitute final judgments on
the merits precluding further litigation against [CIT] concerning
the same primary right.” (Colebrook II, supra, 64 Cal.App.5th at
p. 261.) We said: “[A]ll of [appellant’s] claims are premised upon
and flow from [CIT’s] allegedly wrongful interference with her
ownership rights in the Hawthorne property. She has
consistently sought to vindicate the same ‘primary right.’ . . .
[¶] The following statement in [Colebrook I] applies in the
present case: ‘The instant action involves the same injury –
[appellant’s] loss of her interest in the property – as her prior
lawsuits. That injury arises out of the same loan, and involves
the same property and the same parties. Res judicata bars all of
the causes of action asserted by [appellant]. The trial court did
not err by sustaining [CIT’s] demurrer, without leave to amend . .
. .’” (Id. at p. 264.)
The Present Action
Our decision in Colebrook II was filed on May 17, 2021.
Three months earlier (February 2021), appellant filed a
complaint against respondents. The complaint alleged that in
2016 and 2017 respondents had promised appellant that their
“client CIT would send the actual original [promissory] note and
allonges to [appellant].” But these documents were not provided
to her. “An allonge is a slip of paper sometimes attached to a
5
negotiable instrument for the purpose of receiving further
indorsements when the original paper is filled with
indorsements. California law permits use of an allonge to
transfer a promissory note.” (10 Cal.Jur.3d (August 2023 update)
Bills & Notes § 112, fns. omitted.)
Appellant’s complaint consisted of five causes of action:
intentional misrepresentation, concealment, false promise,
negligent misrepresentation, and fraud. Appellant requested
general damages of $1,440,000 and punitive damages of
$4,320,000.
Respondents demurred to the complaint. The trial court
sustained the demurrer without leave to amend because
appellant’s action was barred by the doctrine of res judicata, the
three-year statute of limitations (Code Civ. Proc., § 338, subd.
(d)), and the litigation privilege (Civ. Code, § 47, subd. (b)). We
limit our review to the issue of the litigation privilege.
Appellant’s Motions in the Instant Appeal
In the instant appeal appellant filed numerous motions and
requests, hereafter collectively referred to as “motions.” Some of
the motions were granted, while others were denied. Other
motions were marked “received” by the clerk’s office, but were not
filed because they failed to comply with court rules. As to
motions and all other documents marked “received” and for which
permission to file is still pending, we grant permission to file
irrespective of whether they comply with court rules. As to
motions that we have not yet ruled upon, they are denied as
unmeritorious. This includes appellant’s motions received by this
court on September 21, 2023, October 18, 2023, and November 1,
2023.
6
Standard of Review
“A demurrer tests the legal sufficiency of factual allegations
in a complaint. [Citation.] A trial court's ruling sustaining a
demurrer is erroneous if the facts alleged by the plaintiff state a
cause of action under any possible legal theory. [Citations.]” (Lee
Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th
73, 78.)
“[W]e apply the de novo standard of review in an appeal
following the sustaining of a demurrer . . . .” (California
Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242,
247.) “[W]e assume the truth of all facts properly pleaded in the
complaint and its exhibits or attachments, as well as those facts
that may fairly be implied or inferred from the express
allegations. [Citation.] ‘We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.’ [Citation.]”
(Cobb v. O'Connell (2005) 134 Cal.App.4th 91, 95.)
Plaintiff's Burden on Appeal
On appeal “[t]he plaintiff has the burden of showing that
the facts pleaded are sufficient to establish every element of the
cause of action and overcoming all of the legal grounds on which
the trial court sustained the demurrer . . . .” (Martin v.
Bridgeport Community Assoc., Inc. (2009) 173 Cal.App.4th 1024,
1031.)
The Litigation Privilege Bars Appellant’s Present Action
Appellant contends: “[T]his case . . . involves [Respondents’]
misrepresentation of material facts inducing Appellant into
believing that the requested original note and allonges would be
returned to Appellant once the . . . action has concluded.” The
misrepresentations were allegedly set forth in two letters from
respondents to appellant’s former attorney. One letter was sent
7
in December 2016. The other letter was sent in January 2017.3
Appellant claims that respondents have “since steadfastly
refused to produce the original note and allonges as . . .
promised.”
“The litigation privilege, as pertinent here, states: ‘A
privileged publication or broadcast is one made: [¶] . . . [¶] (b) In
any . . . (2) judicial proceeding . . . .’ (Civ. Code, § 47, subd. (b).)
‘The principal purpose of [Civil Code] section 47[, subdivision (b),]
is to afford litigants . . . the utmost freedom of access to the courts
without fear of being harassed subsequently by derivative tort
actions. [Citations.]’ [Citation.] The privilege also ‘promotes the
effectiveness of judicial proceedings by encouraging attorneys to
zealously protect their clients' interests.’ [Citation.]” (Finton
Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th
200, 211 (Finton).) “Without the litigation privilege, attorneys
would simply be unable to do their jobs properly.” (Id. at p. 212.)
“‘[T]he privilege is now held applicable to any
communication, whether or not it amounts to a publication
[citations], and all torts except malicious prosecution. [Citations.]
Further, it applies to any publication required or permitted by
law in the course of a judicial proceeding to achieve the objects of
the litigation . . . . [Citations.]’ [Citation.] ‘The breadth of the
3 The December 2016 letter allegedly stated, “‘With regard
to the original Note, CIT will provide you with the original Note
indicating that [appellant’s] obligation under the Note has been
satisfied.’” (Italics omitted.) The January 2017 letter allegedly
stated: “‘[T]he Torrance action is not final. Accordingly, CIT will
not be returning the original Note or Allonges to [appellant] until
the Judgment in the Torrance Action has become final.[’”] “‘CIT
will return the original Note and Allonges to you once the
Torrance action has concluded.[’”] (Italics omitted.)
8
litigation privilege cannot be understated. It immunizes
defendants from virtually any tort liability (including claims for
fraud), with the sole exception of causes of action for malicious
prosecution. [Citation.]’ [Citation.] ‘Any doubt about whether
the privilege applies is resolved in favor of applying it.
[Citation.]’” (Finton, supra, 238 Cal.App.4th at pp. 211-212.)
“‘The litigation privilege has been applied in “numerous
cases” involving “fraudulent communication or perjured
testimony.” [Citations.]’ [Citation.] Because Civil Code section
47, subdivision (b) protects any statements or writings that have
“‘some relation’” to a lawsuit, communications made both during
and in anticipation of litigation are covered by the statute.”
(Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965.)
Respondents’ allegedly false statements were made while
they were representing CIT in litigation concerning the
foreclosure of appellant’s property. In her complaint appellant
claims that, based on respondents’ “promise” to return the
original note and allonges, she “refrained from pursuing the issue
further in the litigation that was ongoing at the time because she
was ignorant of the falsity of the written promise.” (Italics
added.)4
4 In support of a special motion to strike the complaint,
respondent Timothy McGinity declared under penalty of perjury:
“[Appellant] alleges that I made two representations to her prior
counsel that [respondents’] client, CIT Bank, would return to her
the original note and allonges from her foreclosed loan. While I
do not specifically recall making such statements, any statements
I made on such subjects were in the context of representing our
client (then CIT Bank) in connection with its various disputes
with [appellant].”
9
“‘[C]ommunications with “some relation” to judicial
proceedings’ are ‘absolutely immune from tort liability’ by the
litigation privilege . . . .” (Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1057.) “[T]he word ‘tort’ means a civil wrong, other than a
breach of contract, for which the law will provide a remedy in the
form of an action for damages.” (Peredia v. HR Mobile Services,
Inc. (2018) 25 Cal.App.5th 680, 692.) Appellant’s complaint
consisted of five causes of action, all of which were based on tort
liability: intentional misrepresentation, concealment, false
promise, negligent misrepresentation, and fraud. Thus, the trial
court did not err in sustaining the demurrer without leave to
amend because respondents’ allegedly false statements were
absolutely immune from the tort liability asserted in appellant’s
complaint. (See Harris v. King (1998) 60 Cal.App.4th 1185, 1188
[“The absolute privilege of Civil Code section 47, subdivision (b)
applies to all torts other than malicious prosecution, including
fraud, negligence and negligent misrepresentation”].)
We reject appellant’s claim that, because she “has shown
malice in the conduct of [respondents], the privilege is not merely
overcome; but it never arises in the first instance.” “The
litigation privilege, codified at Civil Code section 47, subdivision
(b), . . . is absolute in nature, applying ‘to all publications,
irrespective of their maliciousness.’” (Action Apartment Assn.,
Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.)
Appellant’s Brazen Disrespect of this Court
In June 2023 we denied appellant’s motion filed on May 5,
2023.5 Since then, we have been subjected to an unremitting,
5 The motion was entitled, “APPELLANT OBJECTS &
REJECTS APPELLEE’S INCOMPLETE DISCLOSURE
STATEMENT IN VIOLATION OF RULE 7.1(b), 26.1 and 3-410
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unwarranted stream of invective from appellant. On July 24,
2023, appellant submitted to this court a document stating:
“Appellant has now solicited congress and the Senate to enact an
official investigation and Impeachment Proceedings. Presiding
Judge Gilbert and Judge Yegan are now adversaries and they
must recuse themselves Sua Sponte as required by law and in the
Interest of Justice being done.”
On July 31, 2023, appellant filed a motion to augment the
record, which we denied. In the motion appellant stated, “[T]his
Appellate Court and its Panel of Judges or its Chief Judge
SHOULD BE ASHAMED to call themselves AMERICANS, or A
SHAME TO SAY THAT THEY WORK FOR OR IN AN
AMERICAN COURT OF LAW@!!!!” (Bold omitted.) Appellant
repeated the same statement in another motion to augment the
record that we received on October 18, 2023.
On September 12, 2023, we received the following notice
from appellant: “THE FUNDAMENTAL DOCTRINE OF
‘FAIRNESS’ HAS BEEN THROWN OUT THE WINDOW IN
THIS COURT. PREJUDICE; PREJUDICE OF THE JUDGES IS
AFOOT. . . . [¶] . . . JUDGES, YOU NO LONGER HAVE
AUTHORITY IN THESE PROCEEDINGS AND THEREFORE
YOU ARE COMMITTING TREASON AND YOUR
IMPEACHMENT WILL BE AT HAND ALONG WITH ALL WHO
COLLABORATED WITH YOU.”
DISCLOSURE OF PROFESSIONAL LIABILITY INSURANCE
& MOVES FOR CORRECTION & SUPPLEMENT STATEMENT
OF ALL REQUIRED INFORMATION & DISCLOSURES
THEREOF AND JUDICIAL NOTICE PROVING NOTARY
FRAUD.”
11
On November 7, 2023, the day before oral argument,
appellant filed a petition for a writ of mandamus in the
California Supreme Court. Appellant requested an order
compelling justices of this division to disqualify themselves from
appellant’s appeal and “fire” the division’s clerks.6 The petition
alleged that certain justices of this division were “VIOLATING
THEIR OATH OF OFFICE AND WARING [sic] WITH THE
CONSTITUTION TO GIVE UNLAWFUL SPECIAL
TREATMENT TO APPELLEE AND HIS ATTORNEY.” The
petition further alleged that deputy clerks of this division were
“Playing fast and loose with Government Docket and Records of
the Courts, Tampering with the Docket, Obstructing alleged Pro
Se Litigant filings in violation of Rule 576 (a)(1),(3) &(6) to give
unfair and unlawful Tactical Advantages to Opposing parties
that are attorney(s) and Appellee(s).” The Supreme Court
summarily denied the petition.
During oral argument, appellant threatened that
disciplinary and legal action would be taken against the justices
on the panel. Appellant began her argument with the following
6 The petition was entitled: “APPELLANT’S REQUEST
FOR WRIT OF [MANDAMUS] OR OTHER DISCRETIONARY
STAY FROM THE 2ND DISTRICT APPELLATE COURT
PEREMPTORY . . . COMPELLING PRESIDING JUDGE
GILBERT & HIS PANEL PURUSANT [sic] TO Canon 3E(4)(c)
TO STEP DOWN AND DISQUALIFY CONSTITUTIONAL
MISCONDUCT CHALLENGE FOR CAUSE MALFEASANCE
AND FIRE THEDEPUTY [sic] CLERKS AND OFFICE OF THE
CLERK AS BAD CONSTUDIAN(S) [sic] OF RECORDS &
TORTIORIOUS [sic] UNLAWFUL INTERFERENCE WITH
CASE & CASE TAMPERINGFOR [sic] SUBSTANTIAL RIGHTS
OF APPELLANT HAS BEEN PREJUDICE [sic] IN VIOLATING
OF 576 (a)(1), (3) & (6) AND A FAIR TRIAL CAN NOT BE HAD.”
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admonition: “The cloak of secrecy is out the window; you are all
now under investigation or will be soon because this case is on
appeal to the Federal court and You are all named as involuntary
Appellees including the Judges. [¶] I must caution you all to be
careful of trying to lie or misrepresent to me for any and
everything you say from your own mouths and recordings can
and will be used against you in a court of law.”7 The justices of
this court do not “lie or misrepresent” to the litigants.
Despite appellant’s casting of aspersions upon the integrity
of this court, we have made a concerted effort to treat her
respectfully and fairly. Although we have ample cause to hold
her in contempt and impose punitive sanctions, we decline to do
so this time. But if there is a next time, we may not be so
generous.
Disposition
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. CODY, J.
7 The above quotation is taken verbatim from a written
statement that appellant read to this court at oral argument.
The day after oral argument, appellant submitted a copy of her
written statement to the court. The clerk’s office marked it as
“received.” Permission to file the statement is granted. (See the
section of this opinion entitled, “Appellant’s Motions in the
Instant Appeal,” ante, at p. 6.)
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Tana L. Coates, Judge
Superior Court County of San Luis Obispo
______________________________
Teena Colebrook, in propria persona, for Plaintiff and
Appellant.
Allen Matkins Leck Gamble Mallory & Natsis and Matthew
J. Marino, for Defendants and Respondents.