Case Number: BC524645 Hearing Date: May 12, 2014 Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
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Hearing Date: Monday, May 12, 2014
Calendar No: 1
Case Name: Gnanakone v. Nelson & Kennard, et al.
Case No.: BC524645
Motion: Motion for Judgment on the Pleadings
Moving Party: Defendants Nelson & Kennard, Donald Nelson, Robert Scott Kennard, and Jamie Forbes
Responding Party: Plaintiff Michelle J. Gnanakone
Notice: OK

Tentative Ruling: Motion for judgment on the pleadings is granted. Leave to amend is denied.
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Background –
On 10/17/13, Plaintiff Michelle J. Gnanakone, in propria persona, filed this action against Defendants Nelson & Kennard, Donald Nelson, Robert Scott Kennard, and Jamie Forbes arising out of their involvement in a case against Plaintiff (Case No. 13C00393). Plaintiff asserts causes of action for (1) fraud, (2) violation of the Rosenthal Fair Debt Collection Practices Act (“Rosenthal FDCPA”), (3) violation of federal Fair Debt Collection Practices Act (“Federal FDCPA”), and (4) violation of Bus. & Prof. Code § 17200.

Motion for Judgment on the Pleadings –
Defendants move for judgment on the pleadings.

1. Request for Judicial Notice
In connection with the motion, Defendants request judicial notice of the complaint and proof of service in the underlying case (13C00393) and the absence of any judgment or post-judgment litigation therein. Although Defendants failed to submit proof to support the procedural history of 13C00393 (cf. RJN Ex. 3 (consisting of Plaintiff’s Complaint in this action)), the Court notes that its case summary for 13C00393 reveals that no judgment has been entered therein and that the next hearing is set for 2/4/16 on a OSC re: default judgment. Therefore, the RJN is granted.

2. Factual Allegations
Plaintiff’s action is entirely based on Defendants (who are alleged to be attorneys (see Complaint ¶ 1)) allegedly obtaining a civil judgment against Plaintiff in 13C00393. See, e.g., Complaint ¶¶ 13, FR-2. However, the Court takes judicial notice that no judgment has been entered against Plaintiff in 13C00393.

3. Fraud-Based Claims
Notwithstanding that no judgment has been entered in 13C00393, Plaintiff asserts that the judgment was obtained in the absence of jurisdiction, based on verified facts in the absence of personal knowledge, failure to serve Plaintiff, and intentionally misstated facts in declarations to obtain a judgment. See, e.g., Complaint ¶ FR-2. This forms the basis of each of Plaintiff’s other COAs.

Defendants correctly note that the 1st COA for fraud is not alleged with particularity as to fraudulent conduct, justifiable reliance, and resulting damages. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (requiring pleading facts which “show how, when, where, to whom, and by what means the representations were tendered). Each of Plaintiff’s other COAs are based on the alleged fraudulent conduct in connection with obtaining a judgment in 13C00393. Therefore, they are deficient for the same reasons.

4. Litigation Privilege
Defendants correctly note that the 1st COA for fraud is based on communications and conduct taken in 13C00393, which is barred by the litigation privilege. Civil Code § 47(b); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057, 1061, 1065.

5. Rosenthal FDCPA
Defendants argue that the litigation privilege also bars the 2nd COA for violation of the Rosenthal FDCPA; however, this argument has been rejected by the Court of Appeal in Komarova v. Nat’l Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 337-40.

Nevertheless, Defendants correctly note that the Rosenthal FDCPA does not apply to attorneys. Civil Code § 1788.2(c); Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal.App.3d 1513, 1526.

6. Plaintiff’s Opposition
Plaintiff argues that the Federal FDCPA applies to attorneys (see Heintz v. Jenkins (1995) 514 U.S. 291, 299) and that the litigation privilege does not apply to either the Rosenthal or Federal FDCPA (see, e.g., Santos v. LVNV Funding, LLC (N.D. Cal. 2012) 2012 WL 216398 *2-3). However, this does not respond to the deficiencies of the Complaint as noted above.

7. Ruling
The motion for judgment on the pleadings is granted. The Court is inclined to deny leave to amend.