Marin v. Bahr

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MEL MARIN, Case No.: 23-cv-336-RSH-BLM

12 Plaintiff,

ORDER ON DEFENDANT’S

13 v. MOTION FOR SUMMARY

JUDGMENT, PLAINTIFF’S MOTION

14 DANIEL MARSHALL,

FOR RECONSIDERATION, AND

15 Defendant. PLAINTIFF’S MOTION IN LIMINE

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[ECF Nos. 87, 88, 89]

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19 Before the Court is a motion for summary judgment filed by defendant Daniel

20 Marshall [ECF No. 87] and a motion for reconsideration and motion in limine brought by

21 Plaintiff Mel Marin [ECF Nos. 88, 89]. Pursuant to Local Civil Rule 7.1(d)(1), the Court

22 finds the motions presented appropriate for resolution without oral argument. For the

23 reasons below, the Court grants Defendant’s motion and denies Plaintiff’s motions.

24 I. BACKGROUND

25 A. Plaintiff’s Allegations

26 The instant action arises from unlawful detainer proceedings brought against

27 Plaintiff in California Superior Court. Plaintiff’s First Amended Complaint (“FAC”)

28 alleges as follows.

1 In 2007, Plaintiff’s sister obtained a home equity loan secured by a condominium

2 located at 2410 Albatross Street, San Diego, California (the “Albatross Property”). ECF

3 No. 78 ¶ 15. According to Plaintiff, the loan was never funded, but the lender, World

4 Savings (later acquired by Wells Fargo), nonetheless sought to foreclose and resell the

5 Albatross Property to new owners. Id. ¶¶ 15, 19, 26. In other words, Plaintiff claims the

6 bank never lent any money but was somehow able to successfully foreclose on the

7 Albatross Property. On October 2, 2022, the new owners of the property filed an

8 unlawful detainer action against Plaintiff and his sister in San Diego Superior Court. Id. ¶

9 27. The owners were represented by defendant Marshall in this unlawful detainer action.

10 Id.

11 B. Procedural Background

12 On February 21, 2023, Plaintiff filed his pro se Complaint in the instant action

13 naming seven defendants: Wells Fargo, Clear Recon, the Vanguard Group, John Bahr,

14 John Saxe, John Kallas, and Marshall. ECF No. 1. Plaintiff’s Complaint asserted claims

15 for: reformation of contract (Claim 1); deceit (Claim 2); violations of California

16 foreclosure processing statutes (Claim 3 and 4); violations of California’s Unfair

17 Competition Law (“UCL”) (Claim 5); violation of the California Business Practices Act

18 (Claim 6); setting aside the March 4, 2019 and September 7, 2022 sales, and for quiet

19 title (Claim 7); conversion (Claim 8); and interference with prospective economic

20 advantage (Claim 9). Id. ¶¶ 77–295.

21 On June 24, 2024, the Court granted Wells Fargo’s motion for judgment on the

22 pleadings. ECF No. 77. The Court dismissed Clear Recon, Saxe, Kallas, and Vanguard

23 from this action for lack of proper service; and (2) dismissed Wells Fargo and Bahr from

24 this action under the doctrine of res judicata. Id. at 4–10, 12, 14.1 The Court granted

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1 The Court’s June 24, 2024 Order was interlocutory in nature “[b]ecause it did not

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1 Plaintiff leave to file an amended complaint as to Claims 2, 5, 6, 7 and 9 against

2 defendant Marshall only. Id. at 14.

3 On July 15, 2024, Plaintiff filed his FAC, the operative pleading in this case. ECF

4 No. 78. The FAC asserts claims for deceit (Claim 1) and conversion (Claim 2). FAC ¶¶

5 79–138. On February 28, 2025, Defendant filed the instant motion for summary

6 judgment. ECF No. 87. On the same day, Plaintiff filed a motion for reconsideration and

7 motion in limine. ECF Nos. 88, 89. On March 21, 2025, Plaintiff filed a response to

8 Defendant’s summary judgment motion. ECF No. 90. Defendant did not file a reply in

9 support of his summary judgment motion or responses to Plaintiff’s motion for

10 reconsideration or motion in limine.

11 II. LEGAL STANDARD

12 The Court “shall grant summary judgment if the movant shows that there is no

13 genuine dispute as to any material fact and the movant is entitled to judgment as a matter

14 of law.” See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A

15 fact is material when, under the governing substantive law, it could affect the outcome of

16 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a

17 material fact is genuine if “the evidence is such that a reasonable jury could return a

18 verdict for the nonmoving party.” Id. at 258.

19 The movant bears the initial burden of establishing the absence of a genuine issue

20 of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden by:

21 (1) presenting evidence that negates an essential element of the nonmoving party’s case;

22 or (2) demonstrating that the nonmoving party failed to make a showing sufficient to

23 establish an element essential to that party’s case on which that party will bear the burden

24 of proof at trial. Id. at 322–23. If the movant fails to discharge this initial burden,

25 summary judgment must be denied, and the court need not consider the nonmoving

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execute the judgment[.]” Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 464 (9th Cir.

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1 party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). If the

2 moving party meets this initial burden, however, the nonmoving party cannot defeat

3 summary judgment merely by demonstrating “that there is some metaphysical doubt as to

4 the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

5 (1986); see also Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.

6 1995) (“The mere existence of a scintilla of evidence in support of the non-moving

7 party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 252). Rather, the

8 nonmoving party must “go beyond the pleadings” and “by the ‘depositions, answers to

9 interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a

10 genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).

11 III. ANALYSIS

12 A. Defendant’s Motion for Summary Judgment

13 Defendant moves for summary judgment on both Plaintiff’s claim for deceit and

14 his claim for conversion. See ECF No. 87. The Court addresses both of Plaintiff’s claims

15 below.

16 1. Deceit (Claim 1)

17 In Claim 1 of the FAC, Plaintiff asserts a deceit claim pursuant to California Civil

18 Code § 1710. FAC ¶¶ 79–129. Defendant moves for summary judgment on Claim 1,

19 contending: (1) it is barred by California’s litigation privilege; and (2) Plaintiff has not

20 raised any issues of fact sufficient to avoid judgment on his claim. See ECF No. 87 at 4,

21 6, 8.

22 a. California’s Litigation Privilege

23 “Civil Code section 47, subdivision (b) states any ‘publication or broadcast’ made

24 in the course of a ‘judicial proceeding’ is privileged.” O’Keefe v. Kompa, 84 Cal. App.

25 4th 130, 133 (Ct. App. 2000) (quoting Cal. Civ. Code § 47). “The usual formulation is

26 that the privilege applies to any communication (1) made in judicial or quasi-judicial

27 proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the

28 objects of the litigation; and (4) that [has] some connection or logical relation to the

1 action.” Action Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241

2 (2007).

3 “The principal purpose of [California’s litigation privilege] is to afford litigants

4 and witnesses the utmost freedom of access to the courts without fear of being harassed

5 subsequently by derivative tort actions.” Silberg v. Anderson, 50 Cal. 3d 205, 213 (1990)

6 (internal citation omitted). “In order to achieve this purpose of curtailing derivative

7 lawsuits, [California courts] have given the litigation privilege a broad interpretation.”

8 Action Apartment Ass’n, 41 Cal. 4th at 1241. As such, the litigation privilege is “not

9 limited to statements made during a trial or other proceedings, but may extend to steps

10 taken prior thereto, or afterwards.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006).

11 Here, Plaintiff’s deceit claim is based on his allegations Defendant wrongfully

12 initiated an unlawful detainer action against Plaintiff and his sister in California state

13 court. FAC ¶ 27. Plaintiff alleges Defendant initiated this action despite knowing, or

14 having reason to know, that the lender lacked the power to grant the new owners of the

15 Albatross Property the right of possession. Id. ¶ 100–105.

16 Defendant’s filing of an unlawful detainer action plainly falls within the litigation

17 privilege. See Action Apartment, 41 Cal. 4th at 1249 (“We contemplate no

18 communication that is more clearly protected by the litigation privilege than the filing of

19 a legal action.”); Bisno v. Douglas Emmett Realty Fund 1988, 174 Cal. App. 4th 1534,

20 1551 (Ct. App. 2009) (“[A]n unlawful detainer action falls squarely within the litigation

21 privilege[.]”); Feldman v. 1100 Park Lane Assocs., 160 Cal. App. 4th 1467, 1486 (Ct.

22 App. 2008) (holding defendant’s “filing of the unlawful detainer action clearly fell within

23 the litigation privilege”); see also Williams v. U.S. Bank Nat. Assoc., No. ED CV12-

24 00748-JLQ, 2013 WL 571844, at *2–3 (C.D. Cal. Feb. 13, 2013) (holding that plaintiff’s

25 claim that defendants executed a false declaration in state court to obtain a default

26 judgment in an unlawful detainer action was barred by the litigation privilege); Ananiev

27 v. Aurora Loan Servs., LLC, No. C 12-2275 SI, 2012 WL 4099568, at *4 (N.D. Cal.

28 Sept. 17, 2012), aff’d, 713 F. App’x 668 (9th Cir. 2018) (plaintiff’s claims predicated on

1 allegations defendants law firm filed an unlawful detainer action foreclosed by litigation

2 privilege).

3 California’s litigation privilege is “absolute in nature.” Silberg, 50 Cal. 3d at 215.

4 It applies to all torts except malicious prosecution. Id. at 216. Plaintiff’s deceit claim

5 sounds in tort and is barred by the litigation privilege. See Bily v. Arthur Young & Co., 3

6 Cal. 4th 370, 414 (1992) (recognizing a claim under California Civil Code § 1710 as a

7 “misrepresentation tort”).

8 b. Exceptions

9 In his Opposition, Plaintiff contends California’s litigation privilege does not apply

10 in this case based on a number of purported exceptions—none of which are applicable

11 here. ECF No. 90 at 22–30.

12 Plaintiff argues first the litigation privilege does not apply because Defendant’s

13 filing of an unlawful detainer action was part of a broader conspiracy involving

14 fraudulent and criminal conduct. ECF No. 90 at 22–26. Under California law, however,

15 “the breadth of the litigation privilege cannot be understated. It immunizes defendants

16 from virtually any tort liability (including claims for fraud), with the sole exception of

17 causes of action for malicious prosecution.” Olsen v. Harbison, 191 Cal. App. 4th 325,

18 333 (Ct. App. 2010) (emphasis added). “[C]ommunications made in connection with

19 litigation do not necessarily fall outside the privilege simply because they are, or are

20 alleged to be, fraudulent, perjurious, unethical, or even illegal.” Kashian v. Harriman, 98

21 Cal. App. 4th 892, 920 (Ct. App. 2002); see Weeden v. Hoffman, 70 Cal. App. 5th 269,

22 289 (Ct. App. 2021) (rejecting argument that there is an “illegality exception” to the

23 litigation privilege); Burns v. Baldwin, No. SA CV 00-249 AHS (ANx), 2001 U.S. Dist.

24 LEXIS 25237, *17 (C.D. Cal. Dec. 21, 2001) (“California law does not acknowledge a

25 ‘conspiracy exception’ to the litigation privilege.”).

26 Plaintiff next argues Defendant’s filing of an unlawful detainer action falls within

27 the spoliation exception of the litigation privilege. ECF No. 90 at 23–24. California Civil

28 Code § 47(b)(2) provides that the litigation privilege “does not make privileged any

1 communication made in furtherance of an act of intentional destruction or alteration of

2 physical evidence undertaken for the purpose of depriving a party to litigation of the use

3 of that evidence.” Cal. Civ. Code § 47(b)(2). However, “the spoliation exception to the

4 litigation privilege applies only where the alleged alteration or destruction is intended to

5 deprive a party of the use of the evidence, and where a communication furthers the act of

6 spoliation.” Davis v. Ross, 39 Cal. App. 5th 627, 631 (Ct. App. 2019) (internal citation

7 omitted) (emphasis in original). Plaintiff has not provided any explanation as to why

8 Defendant’s filing of an unlawful detainer action furthered any alleged acts of spoliation.

9 Indeed, Plaintiff’s deceit claim is not based on Defendant’s spoliation of evidence, but on

10 Defendant’s filing of an unlawful detainer action. See FAC ¶ 100.2

11 Finally, Plaintiff argues the Court may elect not to adhere to California’s litigation

12 privilege in a federal question case, citing the Ninth Circuit’s decision in Religious

13 Technology Center v. Wollersheim, 971 F.2d 364 (9th Cir. 1992). ECF No. 90 at 23–24.

14 In Religious Technology, plaintiffs filed suit against defendants alleging violations of the

15 Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Copyright Act, and

16 state tort law. 971 F.2d at 365. The Ninth Circuit rejected Defendant’s argument

17 Plaintiff’s copyright claim was barred by California’s litigation privilege, holding

18 “federal courts will recognize state privileges only in cases in which ‘state law supplies

19 the rule of decision.’” Id. at 367 (quoting Fed. R. Evid. 501). In contrast, here, Defendant

20 is raising the litigation privilege as a bar to Plaintiff’s state law claim for deceit.

21 California substantive law provides the rule of decision for this claim and the litigation

22 privilege, therefore, applies. See Troyer v. Shrider, No. CV 08-5042 PSG(JWJX), 2008

23 WL 4291450, at *3 (C.D. Cal. Sept. 15, 2008) (“Because California law provides the rule

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2 Plaintiff also “cannot raise a new theory for the first time in opposition to summary

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judgment.” Patel v. City of Long Beach, 564 F. App’x 881 (9th Cir. 2014); see Stedman

27 v. McAdam’s Fish, LLC, No. 318CV00130AJBAGS, 2018 WL 5279131, at *3 (S.D. Cal.

Oct. 24, 2018) (“[I]t is well settled that a plaintiff cannot raise a new theory in opposition

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1 of decision for Plaintiff’s [state law] claims . . . the litigation privilege applies to these

2 claims.”); see Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 790 F. Supp. 2d 1024,

3 1030 (N.D. Cal. 2011) (“Religious Technology Center stands for the uncontroversial rule

4 that California’s litigation privilege does not apply to federal claims. It does not stand for

5 the proposition that the litigation privilege does not apply to pendent state claims.”)

6 (emphasis in original).

7 c. Essential Element

8 Even if the California litigation privilege did not apply, summary judgment would

9 still be proper on Plaintiff’s deceit claim, as Plaintiff cannot establish the essential

10 elements of his claim. See Celotex, 477 U.S. at 322 (“[T]he plain language of Rule 56(c)

11 mandates the entry of summary judgment, after adequate time for discovery and upon

12 motion, against a party who fails to make a showing sufficient to establish the existence

13 of an element essential to that party’s case, and on which that party will bear the burden

14 of proof at trial.”).

15 Plaintiff asserts his deceit claim under California Civil Code § 1710(2). FAC ¶

16 106. Under California Civil Code § 1709, “[o]ne who willfully deceives another with

17 intent to induce him to alter his position to his injury or risk, is liable for any damage

18 which he thereby suffers.” Cal. Civ. Code § 1709. California Civil Code § 1710(2)

19 defines deceit as an “assertion, as a fact, of that which is not true, by one who has no

20 reasonable ground for believing it to be true[.]” Cal. Civ. Code § 1710(2). Under

21 California law, “[a] claim for fraud or deceit requires allegations of ‘a representation,

22 usually of fact, which is false, knowledge of its falsity, intent to defraud, justifiable

23 reliance upon the misrepresentation, and damage resulting from that justifiable reliance.’”

24 Dealertrack, Inc. v. Huber, 460 F. Supp. 2d 1177, 1182 (C.D. Cal. 2006) (quoting

25 Stansfield v. Starkey, 220 Cal. App. 3d 59, 72–73 (Ct. App. 1990)).

26 Here, Plaintiff cannot prove multiple essential elements of his deceit claim. First,

27 Plaintiff cannot establish that Defendant made a representation of fact. Plaintiff asserts

28 Defendant made such a representation by “filing a law suit claiming possession.” FAC ¶

1 105. Generally, however, filing a lawsuit, by itself, is not an assertion of fact. Instead,

2 bringing an action for unlawful detainer is an assertion of a legal claim seeking a judicial

3 ruling that plaintiff is entitled to possession. See Frazier v. Superior Court, 86 Cal. App.

4 5th Supp. 1, 7 (2022) (“A cause of action for unlawful detainer is a summary proceeding

5 designed to provide an expeditious remedy to recover possession of real property.”).

6 Second, Plaintiff cannot establish an “intent to defraud.” Plaintiff admits Defendant

7 attached to his unlawful detainer action the deeds allegedly proving that the new owners

8 of the Albatross Property were not entitled to possession. FAC ¶ 100. Far from intending

9 to suppress or conceal these documents, Defendant filed them publicly at the outset of the

10 unlawful detainer action. Finally, Plaintiff also cannot establish that he justifiably relied

11 upon any misrepresentation. Rather than claiming reliance on the alleged falsehood,

12 Plaintiff's FAC clearly states that Plaintiff did not accept Defendant’s claim of

13 possession, but instead “had to devote constant time and energy to defend his sister and

14 himself from the eviction suit.” Id. ¶ 109.

15 For all the above reasons, the Court grants Defendant’s motion for summary

16 judgment as to Plaintiff’s deceit claim.

17 2. Conversion (Claim 2)

18 In Claim 2 of the FAC, Plaintiff asserts a state law claim for conversion. FAC ¶¶

19 130–138. The inclusion of this claim directly contravenes the Court’s June 24, 2024

20 Order, which dismissed Plaintiff’s conversion claim without leave to amend. See ECF

21 No. 77 at 11–12. The Court’s Order further provided Plaintiff leave to amend only certain

22 existing claims against Defendant only. Id. at 14. The Court did not permit Plaintiff to

23 reassert his claim for conversion or to add new claims. Courts in the Ninth Circuit

24 “consistently strike or dismiss parties and claims that exceed the scope of an order

25 granting leave to amend.” Strifling v. Twitter Inc., No. 22-CV-07739-JST, 2024 WL

26 54976, at *1 (N.D. Cal. Jan. 4, 2024) (collecting cases). As Plaintiff has exceeded the

27 scope of the limited leave to amend granted, the Court strikes Claim 2.

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1 B. Plaintiff’s Motion for Reconsideration

2 Plaintiff requests that the Court reconsider its June 24, 2024 Order on Wells

3 Fargo’s motion for judgment on the pleadings. See ECF Nos. 88; 90.

4 1. Timeliness

5 The Court looks first to the timeliness of Plaintiff’s reconsideration motion. Under

6 Civil Local Rule 7.1.i.2, “any motion or application for reconsideration must be filed

7 within twenty-eight (28) days after the entry of the ruling, order or judgment sought to be

8 reconsidered.” Civil L.R. 7.1.i.2. Here, Plaintiff’s motion was filed on February 28, 2025,

9 well after the Court issued its June 24, 2024 Order. ECF Nos. 77, 88. This is, by itself, is

10 grounds for denial. See Hammett v. Sherman, No. 19CV605-LL-AHG, 2022 WL

11 4793488, at *3 (S.D. Cal. Sept. 30, 2022) (holding motion for reconsideration was

12 untimely under Civil Local Rule 7.1.i.2); Appel v. Concierge Auctions, LLC, No. 17-CV-

13 2263-BAS-MDD, 2018 WL 4700472, at *2 (S.D. Cal. Oct. 1, 2018) (holding motion for

14 reconsideration of interlocutory order was untimely “[u]nder the strict letter of the local

15 rules”); see also Waltner v. FDIC, 549 F. App’x 678, 679 (9th Cir. 2013) (district court

16 did not abuse its discretion in denying motion for reconsideration as untimely under local

17 rules); Marks v. City of Seattle, 125 F. App’x 170, 171 (9th Cir. 2005) (same).

18 Indeed, the length of delay between Plaintiff’s motion and the Court’s June 24,

19 2024 Order is significant here. Notably, Plaintiff does not explain why he waited over

20 eight months after the issuance of the Court’s June 24, 2024 Order before filing his

21 motion for reconsideration. Accepting Plaintiff’s motion for reconsideration now after

22 such an unreasonable delay would surely be prejudicial to Clear Recon, Saxe, Kallas,

23 Vanguard, Bahr, and Wells Fargo—who have long since been dismissed from this case.

24 See Diakite v. Poladian, No. 19CV1341-DMS(MSB), 2021 WL 308278, at *2 (S.D. Cal.

25 Jan. 28, 2021) (denying motion for reconsideration as untimely where it was filed eight

26 months after issuance of order); Koby v. ARS Nat’l Servs., Inc., No. 09CV0780 JAH

27 JMA, 2010 WL 5249834, at *2 (S.D. Cal. Dec. 23, 2010) (denying motion for

28 reconsideration as untimely in light of six month delay). The Court can and does deny

1 Plaintiff’s motion on this basis.

2 2. Sufficient Grounds

3 Even if Plaintiff’s motion was timely, the Court’s prior June 24, 2024 Order was

4 not erroneous. Plaintiff advances two arguments in support of reconsideration. First,

5 Plaintiff argues that the Court lacked subject matter jurisdiction over this action when

6 Plaintiff filed it and that the Court’s June 24, 2024 Order must therefore be vacated. ECF

7 No. 90 at 6–11. Second, Plaintiff argues that the Court substantively erred by dismissing

8 Wells Fargo from this action under the “two-dismissal rule.” ECF No. 88-2 at 10–18.3

9 The Court addresses each of these arguments below.

10 a. Colorado River Stay

11 Plaintiff argues the Court must vacate its prior Orders and stay the case under the

12 Colorado River doctrine because the Albatross Property was already the subject of two

13 state court actions at the time he filed this federal action. ECF No. 90 at 8–9.

14 Under the Colorado River doctrine, “a federal court may decline to exercise its

15 virtually unflagging obligation to exercise federal jurisdiction, in deference to pending,

16 parallel state proceedings.” Montanore Minerals Corp. v. Bakie, 867 F.3d 1160, 1165

17 (9th Cir. 2017) (internal quotation marks omitted). The doctrine applies under certain

18 circumstances when there are “pending state court proceedings involving the same

19 property.” Id. at 1166. Courts consider eight factors in determining whether a Colorado

20 River stay is appropriate, including “which court first assumed jurisdiction over any

21 property at stake.” Id. As to this first factor, the Ninth Circuit has held that under the prior

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3 Plaintiff also argues the Court erred by dismissing defendants Clear Recon, Saxe,

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Kallas, and Vanguard under Rule 4(m) without explicitly stating this dismissal was

25 “without prejudice.” ECF No. 88-2 at 9. Plaintiff’s argument ignores the context of the

Court’s June 24, 2024 Order. As Plaintiff himself notes, the Court clearly noted in the

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same order that unserved defendants may only be dismissed without prejudice under Rule

27 4(m). ECF Nos. 24 at 9; 77 at 12; Martin v. City of Long Beach, 2000 WL 1868204, at *1

(9th Cir. 2000) (construing a Rule 4(m) dismissal as a dismissal without prejudice).

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1 exclusive jurisdiction doctrine, “[i]n proceedings in rem or quasi in rem, the forum first

2 assuming custody of the property at issue has exclusive jurisdiction to proceed.” 40235

3 Wash. St. Corp. v. Lusardi, 976 F.2d 587, 589 (9th Cir. 1992); see Fed. Home Loan

4 Mortg. Corp. v. Ha, No. 96-55659, 1998 WL 340118, at *1 (9th Cir. June 1, 1998)

5 (“Although the existence of a case in one forum does not generally defeat jurisdiction in

6 another, there is a firmly-rooted exception to this rule: in cases concerning real property,

7 whichever forum assumes control over the property first has exclusive jurisdiction to

8 proceed.”). “[T]he party moving for a stay under Colorado River bears a heavy burden in

9 justifying such an order.” Ally Bank v. Castle, No. 11-CV-896 YGR, 2012 WL 3627631,

10 at *3 (N.D. Cal. Aug. 20, 2012).

11 Plaintiff has not met this heavy burden here. Plaintiff argues the Court must vacate

12 its June 24, 2024 Order and stay the case because the Albatross Property was the subject

13 of a 2019 action and a 2022 action in state court. ECF No. 90 at 9. The 2019 action,

14 however, had already concluded prior to the filing of Plaintiff’s federal action. See

15 Bauman v. Wells Fargo Bank, N.A., No. D078697, 2022 WL 1055532, at *1 (Cal. Ct.

16 App. Apr. 8, 2022). Consequently, it would not have prevented this Court from

17 exercising jurisdiction over this federal action. See Sexton v. NDEX W., LLC, 713 F.3d

18 533, 537 (9th Cir. 2013) (“The doctrine of prior exclusive jurisdiction applies to a federal

19 court’s jurisdiction over property only if a state court has previously exercised

20 jurisdiction over that same property and retains that jurisdiction in a separate, concurrent

21 proceeding.”) (emphasis added).

22 As to the second unlawful detainer action, Plaintiff has not established that that

23 action was an in rem or quasi in rem action assuming custody of the Albatross Property.

24 Instead, under California law, the “sole question” in an unlawful detainer action is “the

25 right to the possession of the real property described in the complaint.” Bekins v. Trull, 69

26 Cal. App. 40, 44 (Dist. Ct. App. 1924). The title to property “is never in issue” in an

27 unlawful detainer suit and “the judgment, whether for plaintiff or defendant, cannot affect

28 the title.” Id. at 45 (emphasis added); see Vella v. Hudgins, 20 Cal. 3d 251, 255 (1977)

1 (“[J]udgment in unlawful detainer usually has very limited res judicata effect and will

2 not prevent one who is dispossessed from bringing a subsequent action to resolve

3 questions of title or to adjudicate other legal and equitable claims between the parties.”)

4 (internal citations omitted).

5 Even assuming the state court unlawful detainer action was proceeding in rem or

6 quasi in rem, Plaintiff has failed to adequately show that his federal claims involved this

7 Court assuming custody of the Albatross Property. In his original complaint, Plaintiff

8 alleged Wells Fargo did not fund a home equity loan secured by Plaintiff’s sister as to the

9 Albatross Property. Plaintiff therefore sought a declaration from this Court that there had

10 therefore been “no consideration and no loan” and Wells Fargo “had no rights” to

11 subsequently foreclose on and sell the Albatross Property nor to keep any monthly

12 payments on the loan Plaintiff’s sister may have made. ECF No. 1 ¶ 9.

13 It is well-established, however, that the “prior exclusive jurisdiction doctrine does

14 not apply where a party seeks declaratory relief regarding property interests.” See Morris

15 v. SPSSM Invs. 8, LP, No. CV1401305MMMMANX, 2014 WL 12573523, at *6 (C.D.

16 Cal. June 4, 2014) (holding plaintiff’s request for an order declaring her interest in the

17 property did not trigger the prior exclusive jurisdiction doctrine); see Goncalves By &

18 Through Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1254–55 (9th

19 Cir. 2017) (“Since [movants] seek only a determination of their rights, the action in

20 federal court is an in personam action, not an action in rem or quasi in rem.”); see also

21 Ten Bridges LLC v. Hofstad, No. 2:19-CV-01134-RAJ, 2020 WL 1940325, at *2 (W.D.

22 Wash. Apr. 22, 2020) (“Judgment on Plaintiff’s breach of contract, promissory estoppel,

23 and unjust enrichment claims . . . are inherently in personam and the doctrine of prior

24 exclusive jurisdiction does not apply.”); Burke v. Countrywide Mortg. Ventures, LLC,

25 No. CV 17-00220 DKW-RLP, 2017 WL 3392488, at *4 (D. Haw. Aug. 7, 2017) (first

26 factor did not weigh “heavily” in favor of Colorado River stay where civil action was not

27 entirely in rem or quasi in rem but also proceeded in personam). The prior exclusive

28 jurisdiction doctrine would not have prevented the Court from adjudicating Plaintiff’s in

1 personam claims or request for declaratory relief.

2 For these reasons, the Court concludes it is not required to vacate its June 24, 2024

3 Order and a further stay of this case is not warranted.

4 b. Two Dismissal Rule

5 Plaintiff argues that the Court erred by dismissing Wells Fargo from this action

6 under the “two-dismissal rule.” ECF No. 88-2 at 10–18

7 “Generally, a plaintiff’s voluntary dismissal of its case is ‘without prejudice.’”

8 Rose Court, LLC v. Select Portfolio Servicing, Inc., 119 F.4th 679, 685 (9th Cir. 2024).

9 The two-dismissal rule creates an exception. Id. Under Federal Rule of Civil Procedure

10 41(a)(1)(B), “if the plaintiff previously dismissed any federal- or state-court action based

11 on or including the same claim, a notice of dismissal operates as an adjudication on the

12 merits.” Fed. R. Civ. P. 41(a)(1)(B). “The two-dismissal rule was adopted to limit a

13 plaintiff’s ability to dismiss an action and curb abuses of liberal state and federal

14 procedural rules [that] often allowed dismissals or nonsuits as a matter of right until the

15 entry of the verdict.” Rose Court, LLC, 119 F.4th at 685 (internal quotation marks

16 omitted).

17 In its June 24, 2024 Order, the Court held Plaintiff’s voluntary dismissals in Marin

18 v. Wells Fargo, N.A., Case No. 16-cv-2512-MDD-BEN (S.D. Cal.) (“First Action”) and

19 Marin v. Wells Fargo Bank N.A., Case No. 22-cv-7234-VC (N.D. Cal.) (“Second

20 Action”) implicated the two-dismissal rule and bar Plaintiff from suing Wells Fargo a

21 third time on the same claims. ECF No. 77 at 4, 8–9.

22 Plaintiff now contends that: (1) Wells Fargo waived a res judicata defense in this

23 case; and (2) the dismissal of Plaintiff’s Second Action does not implicate the two-

24 dismissal rule. ECF No. 88-2 at 10–18. Plaintiff did not raise or fully develop these

25 arguments in his opposition to Wells Fargo’s motion for judgment on the pleadings and

26 provides no explanation for his failure to do so. See ECF No. 59.

27 The Court did not and could not have erred by failing to consider arguments

28 Plaintiff did not properly raise. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH

1 & Co., 571 F.3d 873, 880 (9th Cir. 2009) (“A motion for reconsideration may not be used

2 to raise arguments or present evidence for the first time when they could reasonably have

3 been raised earlier in the litigation.”) (internal quotation marks omitted); Sinatro v.

4 Barilla Am., Inc., No. 22-CV-03460-DMR, 2024 WL 4008715, at *3 (N.D. Cal. Aug. 29,

5 2024) (“[Defendant] cannot use a motion for reconsideration to get a ‘second bite’ at

6 something it could and should have put before the court in the first instance.”).

7 Regardless, Plaintiff’s argument that Wells Fargo waived its right to invoke the

8 “two-dismissal rule” in its motion for judgment on the pleadings is not well taken.

9 Plaintiff bases this waiver on statements Wells Fargo made in briefing connected to an

10 earlier motion to dismiss. ECF No. 88-2 at 10–11. However, in that briefing, Wells Fargo

11 merely stated that it was withdrawing “its invocation of the two-dismissal rule at this

12 time” and did so “[w]ithout conceding the validity of plaintiff’s arguments” as to how the

13 rule did not apply. ECF No. 14 at 5 (emphasis added). Plaintiff cites no legal authority—

14 nor has the Court located any—that holds the limited withdrawal of an argument from the

15 Court’s consideration in a specific motion operates as a complete waiver of a defense at

16 all subsequent stages of a case.

17 Plaintiff’s contention that the Second Action does not implicate the two-dismissal

18 rule is equally unpersuasive. ECF No. 88-2 at 17–18. To consider Plaintiff’s arguments in

19 proper context, the Court takes judicial notice of the docket and filings in the Second

20 Action and subsequent Ninth Circuit appeal. See Reyn’s Pasta Bella, LLC v. Visa USA,

21 Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (courts “may take judicial notice of court

22 filings and other matters of public record.”).

23 On February 13, 2023, Plaintiff filed a “motion to clarify” in the Second Action. In

24 this motion, Plaintiff acknowledged he had not paid the filing fee to maintain the action

25 and could not meet the deadlines for service. ECF No. 46-1 at 194–195. Plaintiff then

26 inquired “as to whether the court has entered the order yet to dismiss.” Id. The court

27 construed Plaintiff’s motion to clarify as a “motion for voluntary dismissal without

28 prejudice” and granted the motion. Id. at 199. Plaintiff did not request reconsideration in

1 the Second Action. See Case No. 22-cv-7234-VC (N.D. Cal.), Docket. And although

2 Plaintiff did appeal to the Ninth Circuit, he appealed the Northern District’s “dismissal

3 order as an excess of jurisdiction,” and not on the grounds that the court had

4 misconstrued his motion. Case No. 22-cv-7234-VC (N.D. Cal.), ECF No. 17 at 1. The

5 appeal was later denied as being “so insubstantial as to not warrant further review.” Case

6 No. 23-15525 (9th Cir.), ECF No. 2 at 1. The Court rejects Plaintiff’s untimely attempt to

7 relitigate the issue of whether the Northern District properly construed his “motion to

8 clarify.”

9 For the reasons above, the Court DENIES Plaintiff’s motion for reconsideration.4

10 IV. CONCLUSION

11 For the above reasons, the Court: (1) GRANTS Defendant’s motion for summary

12 judgment [ECF No. 87]; (2) DENIES Plaintiff’s motion for reconsideration [ECF No.

13 88]; and (3) STRIKES Claim 2 from Plaintiff’s FAC. In light of these rulings, the Court

14 also DENIES AS MOOT Plaintiff’s motion in limine [ECF No. 89].

15 ///

16 ///

17

18

19 4 Plaintiff also appears to argue that the Court would err in finding an “independent

basis for dismissal” based on privity “if the two dismissal rule errs.” ECF No. 88-2 at 18–

20

21. As explained herein, the Court finds no error in its application of the two-dismissal

21 rule. The Court also stands by its June 24, 2024 Order as it relates to issues of privity.

22

Finally, Plaintiff also disagrees with the Court’s finding that the instant action

23 arose from the “same transactional nucleus of facts” as the First and Second Actions.

ECF Nos. 77 at 5–7; 88-2 at 27–28. Plaintiff’s mere disagreement is not a valid basis for

24

reconsideration. See In re Delta Air Lines, Inc., No. LA CV20-00786 JAK (SKX), 2024

25 WL 3850486, at *8 (C.D. Cal. May 30, 2024) (“A party’s disagreement with a court’s

legal analysis is not a basis for reconsideration.”); Winfield v. Gonzalez, No. 23-CV-783

26

JLS (BGS), 2024 WL 3877256, at *2 (S.D. Cal. Aug. 20, 2024) (“[A] motion for

27 reconsideration cannot be granted merely because Plaintiff is unhappy with the judgment,

is frustrated by the Court’s application of the facts to binding precedent, or disagrees with

28

1 The Clerk of Court is directed to close the case.

2 IT IS SO ORDERED.

3 || Dated: April 10, 2025 ‘

4 febut S Yow

5 Hon. Robert S. Huie

United States District Judge

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