Second Appellate Court--Bookout v. Union Bank 

California Case law">California Case law
California Case law   --Can Union Bank Steal SBA Loaned Money from Union Banks June 25, 2013 Loan Transaction History?  At the September 14, 2016 hearing the Appellate Court learned of Union Banks June 25, 2013 email and Loan Transaction History showing no Res Judicata! This is a copy of the taped Appellate Court hearing with Union Bank showing two sets of books!  How is this legal?Second_Appellate_Court-Union_Bank__TWo_Loan_Accounting.wma
8.2 MB

The Second Appellate Courts full Knowledge of Union Banks actions using Santa Barbara Superior Court Commissioner Denise Motter and Judge Colleen k . Sterne !

From: Bill Bookout [mailto:pismobeachdiveshop@charter.net]
Sent: Tuesday, October 11, 2016 5:15 PM
To: 'Silva, Patricia'; Claborn, Sherry; Bents, Gay; rforouzandeh@rppmh.com; dlee@rppmh.com
Cc: velie@calcoastnews.com; cj.ward@keyt.com; keithcarls@kcoy.com; 'Mendoza, Carlos G.'; terrill.ashker@sba.gov; adam.kaplan@sba.gov; ombudsman@fdic.gov; ombudsman@sba.gov; sandiego@sba.gov; 'Bill Bookout'
Subject: RE: RETURNED / UNFILED - Correspondence, Case no. B269942 - Bookout v. MUFG Union Bank, N.A. [ Trial Court Case No: 15CV0265 ]

 

October 11, 2016

 

PATRICIA SILVA, Supervising Deputy Clerk
COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION SIX
200 East Santa Clara Street | Ventura, CA 93001
General: 805-641-4700

patricia.silva@jud.ca.gov| courts.ca.gov/2dca | facebook.com/2dcoa
Committed to providing fair and equal access to justice for all Californians

 

PATRICIA SILVA, Supervising Deputy Clerk

 

I have filed a Petition for Rehearing in accordance with California Rules of Court, Rule 8.268.   Santa Barbara Superior Court Commissioner Denise Motter and Judge Colleen k . Sterne will not allow questions of Union Bank except through Union Banks Attorneys since 2011 and this should not be allowed by Justice Gilbert, PJ, Yegan, J. and Perren, J in their September 28th 2016 ruling.  I have refilled my July 18, 2016 Reply Brief in hopes that they will read it this time!

 

Can you explain why the Second Appellate Court ignored Union Banks June 25, 2013 Loan Transaction History as seen at www.secondappellatecourt.com  ?  This News and Commentary website has been set up to show Union Banks actions after Bankruptcy showing that no Res Judicata occurred with Union Banks June 25th 2013 Loan Transaction History!  The Appellate Court ignored this.

 

With the Second Appellate Courts Justice Gilbert, PJ, Yegan, J. and Perren, J --September 28, 2016 Decision; Union Bank has never amended IRS 1099-A Accounting to the IRS and have claimed in their 2012 1099-A Form (Returned by the Second Appellate Court) that the Oceano Nursery SBA Loan was paid in full.  This will now be the next lawsuit against Union Bank as Union Bank Falsified accounting in February 11th 2014 to myself without actually correcting IRS accounting to the IRS going back to 2007; per Union Banks claimed Rescission before the Second Appellate Court.  This is continued Fraud and now Grand Theft by Union Bank with the Second Appellate Courts September 28, 2016 Decision.  Please review Union Banks email bow on July 13, 2016 as Union Bank refuses to answer SBA Loan Questions with  Santa Barbara Superior Court Commissioner Denise Motter and Judge Colleen k . Sterne Restraining orders talked about by Justice Gilbert, PJ, Yegan, J. and Perren, J.

 

I have again attached Union Banks 2013 Accounting to the IRS showing the Oceano Nursery SBA Loan being paid in Full. Union Bank had been given 24 hours to respond as of 1:04 pm September 28, 2016, but failed to respond  Please see this Email attached to Union Bank below!

 

The Second Appellate Court acknowledged Union Banks Restraining orders on P. 4 of their Decision.  Full Discovery could not have been done until Union Bank provided its June 25, 2013 Loan Transaction History.  Union Bank has never informed the IRS of Union Bank changing Yearly IRS 1098 accounting going back to 2007 as discovered on September 20th 2016.  Union Bank has not changed their IRS Accounting going back to 2007and I ask for this decision to be reconsidered with Union Banks use of restraining orders acknowledged by Justice Gilbert, PJ, Yegan, J. and Perren, J that have been issued by Santa Barbara Superior Court Commissioner Denise Motter and Judge Colleen k . Sterne. 

 

Please have Justice Gilbert, PJ, Yegan, J. and Perren, J reconsider their decision.  Union Banks restraining order actions acknowledged by Justice Gilbert, PJ, Yegan, J. and Perren, J are made public and presented to the National News Media at www.secondappellatecourt.com along with www.unionbank.me and www.mufgunionbankna.com .  Union Bank has again ignored the September 28th 2016 email below to the Union Bank Attorneys; I am required to communicate with by Santa Barbara Superior Court Commissioner Denise Motter and Judge Colleen k . Sterne.

 

Sincerely

 

William A. Bookout

 

From: Silva, Patricia [mailto:Patricia.Silva@jud.ca.gov]
Sent: Wednesday, September 28, 2016 5:18 PM
To: pismobeachdiveshop@charter.net
Subject: RETURNED / UNFILED - Correspondence, Case no. B269942 - Bookout v. MUFG Union Bank, N.A. [ Trial Court Case No: 15CV0265 ]

 

Dear Mr. Bookout,

 

The attached documents are returned to you unfiled.  If you are unsatisfied with the decision,  you may file Petition for Rehearing in accordance with  California Rules of Court, Rule 8.268. 

 

Please also refer to our website, under PRACTICES AND PROCEDURES; ORAL ARGUMENT/OPINION/ REMITTITUR to help guide you in answering commonly asked questions.  http://www.courts.ca.gov/2970.htm

 

If you should have any further questions, please give us a call as this email should only be used for relaying court orders and not for ex-parte matters.

 

Sincerely,

 

PATRICIA SILVA, Supervising Deputy Clerk
COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION SIX
200 East Santa Clara Street | Ventura, CA 93001

General: 805-641-4700

patricia.silva@jud.ca.gov| courts.ca.gov/2dca | facebook.com/2dcoa
Committed to providing fair and equal access to justice for all Californians

 

From: Bill Bookout [mailto:pismobeachdiveshop@charter.net]
Sent: Wednesday, September 28, 2016 4:46 PM
To: Claborn, Sherry; Bents, Gay; rforouzandeh@rppmh.com
Cc: velie@calcoastnews.com; cj.ward@keyt.com; keithcarls@kcoy.com; 'Bill Bookout'
Subject: RE: Opinion filed in case no. B269942 - Bookout v. MUFG Union Bank, N.A. [ Trial Court Case No: 15CV0265 ]

 

SHERRY CLABORN, Deputy Clerk
COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION SIX
200 East Santa Clara Street | Ventura, CA 93001
General: 805-641-4700 | Direct: 805-641-4718

sherry.claborn@jud.ca.gov| courts.ca.gov/2dca | facebook.com/2dcoa
Committed to providing fair and equal access to justice for all Californians

 

Can you explain why the Second Appellate Court ignored Union Banks June 25, 2013 Loan Transaction History as seen at www.secondappellatecourt.com ?  This News and Commentary website has been set up to show Union Banks actions after Bankruptcy showing that no Res Judicata occurred with Union Banks June 25th 2013 Loan Transaction History! 

 

With the Second Appellate Courts September 28, 2016 Decision; Union Bank has never amended IRS 1099-A Accounting to the IRS and have claimed in their 2012 1099-A Form that the Oceano Nursery SBA Loan was paid in full.  This will now be the next lawsuit against Union Bank as Union Bank Falsified accounting in February 11th 2014 to myself without actually correcting IRS accounting to the IRS going back to 2007; per Union Banks claimed Rescission before the Second Appellate Court.  This is continued Fraud and now Grand Theft by Union Bank with the Second Appellate Courts September 28, 2016 Decision.. 

 

I have attached Union Banks 2013 Accounting to the IRS showing the Oceano Nursery SBA Loan being paid in Full. Union Bank has been given 24 hours to respond as of 1:04 pm September 28, 2016.  Please see this Email attached to Union Bank below!

 

The Second Appellate Court acknowledged Union Banks Restraining orders on P. 4 of their Decision.  Full Discovery could not have been done until Union Banks June 25, 2013 Loan Transaction History that Union Bank never informed the IRS of Union Bank changing Yearly 1098 accounting going back to 2007.  Union Bank has not changed IRS Accounting going back to 2007and I ask for this decision to be reconsidered with Union Banks use of restraining orders.

 

Please have Justice Gilbert, PJ, Yegan, J. and Perren, J reconsider their decision.

 

Sincerely

 

William A. Bookout

 

 

 

From: Bill Bookout [mailto:pismobeachdiveshop@charter.net]
Sent: Wednesday, September 28, 2016 1:04 PM
To: 'Robert Forouzandeh'; dlee@rppmh.com
Cc: sluong@ch13wla.com; mbesecker@ch13wla.com; 'Mendoza, Carlos G.' (Carlos.Mendoza@sba.gov); Ashker, Terrill K. <terrill.ashker@sba.gov> (terrill.ashker@sba.gov); Kaplan, Adam D.(Off. Inspector Gen.) <adam.kaplan@sba.gov> (adam.kaplan@sba.gov); keithcarls@kcoy.com; cj.ward@keyt.com; velie@calcoastnews.com; ombudsman@fdic.gov; ombudsman@sba.gov; da, sbcounty (sbcountyda@co.santa-barbara.ca.us); sandiego@sba.gov; san.francisco@ic.fbi.gov; 'Bill Bookout' (Pismobeachdiveshop@charter.net)
Subject: RE: Show changes to Union Banks 2012 IRS 1099-A Form accounting within 48 Hours going back to 2007 or admit to Union-Banks monthly Grand Theft!

 

September 28, 2016

 

Union Bank Senior Vice President Christine Sontag through

Union Bank SBA Loan Representative’s Diana Jessup Lee and Robert B. Forouzandeh

Reicker, Pfau, Pyle & McRoy LLP

1421 State Street, Suite B

Santa Barbara, CA  93101

Tel:  805-966-2440

 

RE: Union Bank is to provide within 48 Hours any documents provided to the IRS showing Union Bank doing a Rescission of SBA PLP Loan # 664-196-4009 going back to 2007 or admit to Union-Banks monthly Grand Theft!

 

Dear Union Banks Senior Vice President Christine Sontag. Through, Union Banks Court appointed SBA Loan Representative’s Diana Jessup Lee and Robert B. Forouzandeh

 

Union Banks SBA Loan Representative, Robert B. Forouzandeh sent acknowledgment of the Oceano Nursery SBA Loan Rescission dated July 13, 2016 in his response email below!  (“Furthermore, I have no knowledge that the IRS has deemed any tax forms submitted by SBBT and/or Union Bank to the IRS with regard to your account as being deficient, incorrect or requiring additional information or documentation.”  I am requesting full reimbursement for all of Union Banks fraudulent monthly claimed payments since February 22, 2012 when this SBA Loan was paid in full according to Union Banks 2012 1099-A Form.  Any payments made until Union Banks actions are resolved must be fully reimbursed by Union Bank.  Union Banks Senior Vice President Christine Sontag, Again answer the questions asked of you below on June 30, 2016- July 1, 2016 and July 13, 2016! Union Bank SBA Loan Representative’s Diana Jessup Lee and Robert B. Forouzandeh are not qualified to answer Union Banks IRS Accounting questions, per the July 13, 2016 E-Mail from Robert B. Forouzandeh!

 

Union Banks Senior Vice President Christine Sontag, understand that all questions asked of you will be posted at www.unionbankna.com www.secondappellate.com  and other news and commentary websites.  Santa Barbara Superior Court Commissioner Denise Motter and Santa Barbara Superior Court Judge Colleen K. Sterne require at your request that all questions asked of Union Bank are asked through Union Bank SBA Loan Representative’s Diana Jessup Lee and Robert B. Forouzandeh.

 

Union Banks Senior Vice President Christine Sontag.  Has Union Bank amended the IRS 1098 Form changes made by Union Bank on June 25, 2013 showing the Additional Interest charged in 2007, 2008, 2009, 2010, 2011, 2012, 2013 and 2014 with Union Banks claimed two sets of Union Bank accounting records and Rescission before the Second Appellate Court?  Union Bank has not accounted for these June 25, 2013 SBA Loan changes made by Union Bank to the IRS or William A. Bookout.  According to the IRS Accounting this SBA Loan was paid off in 2012 and Union Bank has not provided any additional accounting!   

 

Union Banks Senior Vice President Christine Sontag.  Union Bank reported to the IRS in 2012 in the only 1099-A provided to the IRS, that the fair market Value of the Oceano Nursery SBA Loaned property was $189,000.00 and that the Balance of the Principal as of February 22, 2012 was $0.00!  Union Bank had appraised the Oceano Nursery property at $265,000.00.  How can Union Bank make this kind of Banking Fraud to the IRS and Debtor William A. Bookout?  This is seen at www.secondappellate.com Union Banks Senior Vice President Christine Sontag, Did Union Bank provide the IRS any accounting showing that money was owed Union Bank after February 22, 2012?

 

Union Banks Senior Vice President Christine Sontag.  Please immediately provide any and all of Union Banks IRS 1098 Form accounting changes going back to 2003 with any SBA Loan changes made by yourself, Robert B. Forouzandeh, Diana Jessup Lee or Union Bank!  This will be provided to the IRS for the 2012, 2013 and 2014 IRS Audit.

 

Union Banks Senior Vice President Christine Sontag, From the February 22, 2012 Foreclosure of the Oceano Nursery SBA loan, as seen in the 2012 IRS 1099-A.  No money has been owed Union Bank since February 22, 2012 and a THIRD DEMAND is Now made of Union Bank for full reimbursement of all Principal and interest paid since February 22, 2012!  Explain if Union Bank has provided accounting to the IRS showing any money owed Union Bank after February 22, 2012.  Has Union Banks SBA Loan Representative, Robert B. Forouzandeh been making falsified monthly payment notices?

 

Union Banks Senior Vice President Christine Sontag, Explain, why Union Bank did not account to the IRS, Union Banks $57,676.17 in Attorney fees taken on February 22, 2012 in the 2012 IRS 1099-A Form or the 1098 Form?  Please immediately correct this as I will be amending my 2012 taxes!

 

Union Bank Senior Vice President Christine Sontag again, explain how Union Bank came up with an additional $45,171.20 not owed Union Bank against IRS 1098 Form accounting from 2007 to 2012 not seen in Union Banks June 25, 2013 Loan Transaction History?  The IRS will need this accounting from Union Bank!

 

Union Banks Senior Vice President Christine Sontag, This is AGAIN NOTICE TO UNION BANK THAT SBA PLP Loan # 664-196-4009 WAS RESCINDED BY DEBTOR WILLIAM A. BOOKOUT ON JULY 13, 2016 AND NO MONEY IS OWED UNION BANK.  The IRS shows that this SBA PLP Loan # 664-196-4009 was paid in Full in the Union Banks 2012 Form 1099-A  Union Banks SBA Loan Representative Robert B. Forouzandeh responded on July 13, 2016 on your, behalf.  The Questions asked of You need to be answered by You or Union Bank and not Robert B. Forouzandeh, who has admitted before the Second Appellate Court of Union Bank having two sets of accounting.  UNION BANK IS TO REFUND ALL ATTORNEY FEES TAKEN BY UNION BANK ALONG WITH PRINCIPAL PAYMENTS AND INTEREST PAID SINCE FEBRUARY 22, 2012 within 30 days! 

 

Union Banks Senior Vice President Christine Sontag,  Explain this statement made by Robert B. Forouzandeh to myself and those attached!  (“Furthermore, I have no knowledge that the IRS has deemed any tax forms submitted by SBBT and/or Union Bank to the IRS with regard to your account as being deficient, incorrect or requiring additional information or documentation.”   Why would Union Bank put Robert B. Forouzandeh in charge of this statement instead of Union Bank?  Union Bank is to provide within 48 Hours any documents provided to the IRS showing Union Bank doing a Rescission of SBA PLP Loan # 664-196-4009 going back to 2007 or admit to Union-Banks monthly Grand Theft!

 

Union Banks Senior Vice President Christine Sontag, Currently Union Bank is committing Grand Theft each month with the Monthly payment Notices made by Robert B. Forouzandeh against the 2012 IRS Form 1099-Accounting!  If Union Bank disputes this then within 48 hours; Union Bank is to provide any documents provided to the IRS that shows that this SBA PLP Loan # 664-196-4009 was not paid in Full in Union Banks 2012 Form 1099-A!  The IRS was never provided a 1099-A Form Correction dated February 11, 2014 as claimed by Union Banks Attorney Robert B. Forouzandeh that Santa Barbara Superior Court Commissioner Denise Motter and Santa Barbara Superior Court Judge Colleen K. Sterne require I communicate through for questions asked of You and Union Bank!

 

Sincerely

 

William A. Bookout

SBA PLP Loan # 664-196-4009

 

CC. IRS July 20th 2016 –September 21, 2016 Audit

2384 Professional Parkway

Santa Maria, Ca 93455

Fax # 855-293-4983

 

CC SBA, FBI, SBA Ombudsman, SBA FDIC,  OCC

CC California State Bar

 

 

From: Robert Forouzandeh [mailto:rforouzandeh@rppmh.com]
Sent: Wednesday, July 13, 2016 2:20 PM
To: Bill Bookout
Subject: RE: In re William Arthur Bookout USBC Cen. Dist. CA.CaseNo.9:11-bk-15818

 

Mr. Bookout:

 

I do not have any knowledge that the IRS has subpoenaed any documentation from Union Bank regarding your account.  Furthermore, I have no knowledge that the IRS has deemed any tax forms submitted by SBBT and/or Union Bank to the IRS with regard to your account as being deficient, incorrect or requiring additional information or documentation.

 

 

Robert B. Forouzandeh | Partner
Reicker, Pfau, Pyle & McRoy, LLP | Santa Barbara’s Business Law Firm
1421 State Street, Suite B | Santa Barbara, CA 93101 | www.reickerpfau.com
Phone: (805) 966-2440 | Fax: (805) 966-3320 | Email: rforouzandeh@rppmh.com

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CIRCULAR 230 DISCLOSURE:  Pursuant to Regulations Governing Practice Before the Internal Revenue Service, any tax advice contained herein is not intended and may not be used by any person for the purpose of avoiding tax penalties that may be imposed upon a taxpayer or for the purpose of promoting, marketing or recommending to another party any transaction or tax-related matter.

 


SECOND APPELLATE DISTRICT, DIVISION SIX

                                                                                                                           

WILLIAM A. BOOKOUT,

PLAINTIFF/APPELLANT

                        vs.

MUFG UNION BANK, N.A. SUCCESSOR TO SANTA  BARBARA  BANK & TRUST, N.A., fka PACIFIC CAPTIAL BANK; NOW KNOWN AS MUFG UNION BANK, N.A DOES 1-50,

 

DEFENDANTS/RESPONDENTS

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Second Appellate No. B269942

 

Appeal from the Judgment of the Superior Court of San Luis Obispo County

Case No. 15CV-0265

 

Hon. Judge Barry T. LaBarbera, Presiding

 

1) BREACH OF WRITTEN CONTRACT

2) FRAUD

3) PERJURY

4) BREACH OF FIDUCIARY DUTY

5) NEGLIGENCE

 

 

__________________________

APPELLANT’S OPENING BRIEF

 

                                                                        William A. Bookout

                                                                        470 Price St

                                                                        Pismo Beach, CA 93449

                                                                        Telephone (805) 773-2089

                                                                        pismobeachdiveshop@charter.net

                                                                        In Pro Per


 

TABLE OF CONTENTS

I.  INTRODUCTION   7

II.  PROCEDURAL HISTORY   8

III.  STATEMENT OF APPEALABILITY   11

IV.  STATEMENT OF FACTS  12

V.  SUMMARY OF ARGUMENT   21

VI.  LEGAL DISCUSSION   25

VII.  CONCLUSION   42

CERTIFICATE OF COMPLIANCE  43

PROOF OF SERVICE                                                                                                                       44                                                                                                  

 


 

TABLE OF AUTHORITIES

Cases

Adams [181 Cal. App. 3d 597] v. Martin (1935) 3 Cal. 2d 246, 248 [44 P.2d 572]         40                                           

Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155 26, 29, 35, 36

Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 158............. 36

Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810-811 [122 P.2d 892]................ 41

Bollinger v National Fire Ins. Co. (1944) 25 C2d 399, 411.................................... 15, 22, 43

Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442 [186 Cal.Rptr. 357]   27

Caldwell v. Taylor, supra, 218 Cal. 471, at page 479……………………………………41

California Bank & Trust v. DelPonti (2014) 232 Cal.App.4th 162, 167........................... 27

California Emp. etc. Com. v. Matcovich (1946) 74 Cal.App.2d 398, 403 [168 P.2d 702] 31

Casualty Insurance Company v. Rees Investment Company (1971) 14 Cal.App.3d 716, 720, 92 Cal.Rptr. 857............................................................................................................................................ 26

Columbia Cas. Co. v Northwestern Nat’l Ins. Co. (1991) 231 Cal.App.3d 457................ 25

Craney v. Low (1956) 46 Cal.2d 757 [298 P.2d 860],.......................................................... 41

Day v. Sharp (1975) 50 Cal.App.3d 904................................................................................ 25

Deist v. Wachholz (1984) 208 Mont. 207 [678 P.2d 188, 193-195]………………...28, 39

Doe v. Allied-Signal, Inc. (7th Cir.1993) 985 F.2d 908....................................................... 26

Doe v. Allied-Signal, Inc. (7th Cir.1993) 985 F.2d 908, 914............................................... 34

Federal Deposit Ins. Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38]……………………………………………………………………………………...38

First National Bank in Lenox v. Brown (Iowa 970) 181 N.W.2d 178, 182-183…….28, 39

Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 809, 35 Cal.Rptr. 797, 110 P.3d 914   25

Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1299..................... 30,31

Fuentes 509 B.R. 832 (Bankr. S.D. Tex. 2014)...................................................................... 40

Hale 2015 WL 1263255 (Bankr. D.S.C. Mar. 16, 2015)...................................................... 40

Himel v. Continental Ill. Nat. Bank & Trust (1979) 596 F.2d 205, 210............................. 35

In re Marriage of Brennan (1981) 124 Cal. App. 3d 598, 601 [177 Cal. Rptr. 520]........ 41

Kane v. Cook, 8 Cal. 449............................................................................................. 14, 21, 22

Kettelle v. Kettelle (1930) 110 Cal.App. 310, 312............................................................... 35

Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203 [30 P.2d 39]........................ 21, 22

Klein v. First Edina National Bank (1972) 243 Minn. 418 [196 N.W.2d 619, 622-623, 70 A.L.R.3d 1337]............................................................................................................................................. 27, 39

Kreider 494 B.R. 201 (Bankr. M.D. Penn. 2013)................................................................... 40

Levy v. Cohen, supra, 19 Cal.3d at p. 172……………………...………………………..32

Lighty 513 B.R. 489 (Bankr. D.S.C. 2014)............................................................................. 39

Matter of Baudoin, supra, 981 F.2d at p. 742…………………………………………....33

Mattson v. City of Costa Mesa, supra, 106 Cal.App.3d at p. 449....................................... 40

Mirzai, supra, 271 B.R. at pp. 652-653…………………………………………………..33

Marriage of Brennan (1981) 124 Cal. App. 3d 598, 601 [177 Cal. Rptr. 520]…………..40

Morgan v. Asher (1920) 49 Cal. App. 172, 176-179 [193 P. 288]..................................... 41

Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1044         22

Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1162).................................................. 32

Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131 [54 Cal.Rptr. 533] ………………………………………………………………………………...……….28

Olam v. Congress Mortgage Co. (N.D.Cal. 1999) 68 F.Supp.2d 1110, 1139-1142.......... 28

Ortega 2013 WL 2099726 (Bankr. S.D. Tex. May 14, 2013................................................ 39

Owens 2014 WL 184781 (Bankr. W.D.N.C. Jan 15, 2014)................................................. 39

Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810]…………38

Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 235 [153 P.2d 325]............... 22,36

Powe v. Chrysler Financial Corporation, L.L.C. (In re Powe), 278 B.R. 539 (Bankr. S. D. Ala. 2002………………………………………………………………………………39

Ripplin Shoals Land Co., LLC v. U.S. Army Corps of Eng’rs, (8th Cir. 2006) 440 F.3d 1038, 1042         29

Roife 2013 WL 6185025 (Bankr. S.D. Tex. Nov. 26, 2013)................................................ 40

Russell v. United States (9th Cir. 1979) 592 F.2d 1069, 1071-1072................................. 31

Safeco Insurance Co. v. Tholen (1981) 117 Cal. App. 3d 685, 696 [173 Cal. Rptr. 23]. 30

Samuels v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701]…………38

Siegel v. Federal Home Loan Mortg. Corp. (9th Cir. 1998) 143 F.3d 525, 529................ 32

Slick v. Norwest Mortgage, Inc. (2002) Bankr.Lexis 772 (Bankr.S.D.Ala. 2002)..... 35, 38

Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 127—128 [211 Cal.Rptr. 271], internal citation omitted……………………………………………………………15,37

Stenderup v. Broadway State Bank (1933) 219 Cal. 593 [28 P.2d 14].............................. 41

Stewart v. Phoenix Nat. Bank (1937) 49 Ariz. 34 [64 P.2d 101, 106]......................... 28, 29

Tate v. Nationsbanc Mortgage Corporation (In re Tate), 253 B.R. 653 (Bankr. W.D.N.C. 2000…………………………………………………………………………………....38

United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [282 Cal.Rptr. 368           27

Wells Fargo Bank, N.A. v. Jones (5th Cir. 2011) 439 Fed.Appx. 330................................ 35

White Mountain Apache Tribe v. Williams (9th Cir. 1984) 810 F.2d 844, 856............... 31

Yager v. Yager (1936) 7 Cal.2d 213, 217............................................................................... 35

Statutes

3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, sections 586, 588, at pp. 2224-2227..21

4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, sections 547, 551, pp. 674-675, 679-680.        27

5 Witkin, California Procedure (2d ed. 1971) Attack on Judgment in Trial Court, section 183, page 3752.................................................................................................................................................... 41

Civil Code section 1572..................................................................................................... 21, 23

Civil Code section 1689..................................................................................................... 20, 21

Civil Code section 1709............................................................................................................ 20

Civil Code section 1710............................................................................................................ 20

Civil Code section 337...................................................................................................... passim

Civil Code section 337(1).................................................................................................... 7, 22

Civil Code section 337(3)................................................................................................. passim

Civil Code section 338(d)................................................................................................. passim

Code of Civil Procedure section 352.1………………………………………………12, 20

Civil Code section 631.8........................................................................................................... 22

Civil Code section 904.1........................................................................................................... 12

Evid. Code, section 451............................................................................................................ 27

Evid. Code, section 452...................................................................................................... 24, 27

Evid. Code, section 454(b)....................................................................................................... 24

Evid. Code, section 459...................................................................................................... 24, 27

Evid. Code, section 459, subd. (a)........................................................................................... 25

Witkin, Cal. Procedure (2d ed. 1971) Pleading, sections 586, 588, at pp. 2224-2227.... 14

Other Authorities

2 Jefferson, Cal.  Evidence Benchbook, supra, section 47.1, at pp. 1064-1065.............. 25

2 Jefferson, Cal. Evidence Benchbook (3d ed. 1997) section 47.68, at p. 1093.............. 25

Rules

Bankruptcy Rules, rule 9024, 11 U.S.C.................................................................................. 30

Fed. Rules Civ.Proc., rule 60(b), 28 U.S.C............................................................................. 30

Federal Bankruptcy Rule 3002.1..................................................................................... passim

Rule 201. Judicial Notice of Adjudicative Facts (c) Taking Notice................................... 37

Rule 8.252................................................................................................................................... 27

Title 11 United States Code section 502(j)............................................................................ 27


 

I.  INTRODUCTION

This Appeal is from five rulings regarding Respondent MUFG UNION BANK, N.A (“Union Bank”) Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence.  This Civil lawsuit was filed on May 18, 2015 within the four year Statute of Limitations for the May 19, 2011 Falsified Notice of Default and the Courts established Rescission Date of November 23, 2011.  The Trial Court’s rulings of December 3, 2015 are an Abuse of Discretion as the judgments have been made in error and are not supported by the substantial evidence in the record or California Case law.  Respondent Union Bank has successfully misled the Court to prevent Plaintiff/Appellant from a Jury Trial on the merits of this case, which has denied Appellant his right to trial.  Appellant has pled that on several dates within the four year statute of limitations, there was Breach of Written Contract, showing that Appellant claims are not barred by the Statute of Limitations prior to May 19, 2011 and are within Civil Code section 337(1).  Appellant Opposition (“Opp”) and Reply exhibits show no Res Judicata.  Respondent never provided Union Bank’s December 26, 2011 Rescission until June 27, 2013 (“RT”P. 746- FAC Exhibit 9-5) Argued to the Court in (“RT” P. 521 to 525 Paragraphs 20 to 26).     Union Bank’s Attorney Fees of $57,676.17 on February 22, 2012 is a Breach of Written Contract against the Deed of Trust and Federal Bankruptcy Rule 3002.1 within a Four year Statute of Limitations.

Pursuant to the December 3, 2015, hearing Oral Arguments on the Demurrer to First Amended Complaint, the Court refused to allow Opposition Exhibit # 27 (Augmented before this Court on April 28, 2016).  The tape recording of this Bankruptcy confirmation hearing was provided to Appellant on November 10, 2015 (“RT” Vol. 6 P. 1631 Paragraph 7) for the first time. See (“RT” Vol. 6. P. 1670 Opp Exhibit. 27).  Appellant believed it was essential to have this transcript included in the record with Respondent’s November 24th 2015 comments and respondents December 7th and 11th claim of Attorney Fees, so Appellant filed the full typed version with the Court on December 21, 2015 in Appellants (Request for Judicial Notice in Opposition to Defendants Claim of Attorney Fees (Ex. 27 Augmented into the record April 28th 2016) showing the April 13, 2012 Bankruptcy Conformation being approved “Without Prejudice”.  Respondent Union Bank (“RT” Vol. 6. Pgs. 1594 -1595) were allowed to give testimony per (FAC Exhibit # 27“RT” Vol. 6. Pg. 1670).  Respondent never provided an additional (Proof of Claim) until June 27, 2013 against Respondents arguments per (Exhibit # 27“RT” Vol. 6. Pgs. 1594 -1595).  This June 25, 2013 (Proof of Claim) showed Respondents Fraud and undisclosed Rescission making this a Civil Case filed within the 3 and 4 year Statute of Limitations for Fraud and Breach of Contract.

II.  PROCEDURAL HISTORY

            This Appeal comes from an SBA Loan in 2003 that was improperly amortized in 2007 and then changed on December 26, 2011 by Respondent doing a Rescission without informing Appellant or the Bankruptcy Court of these changes until June 27, 2013 by email (“RT” Vol. 3. Pg. 746 FAC Exhibit 9-5) acknowledged by the Court.  The Court is fully aware of Respondent’s two Emails (“RT” Vol. 3. Pgs. 742–746- FAC Exhibits 9-1 to 9-4) on January 8, 2013 and January 24, 2013. (“RT” Vol. 3. Pgs. 521-522 FAC Page 10 to 11) claiming that amortization schedules created by Union Bank’s Attorneys are accurate against Union Bank’s June 27, 2013 email (“RT” Vol. 2 Paragraph 22 P. 522 to 523) statments by Union Banks Attorney Robert B. Forouzandeh (“RT” Vol. 3. Pg. 746 FAC Exhibit 9-5 “RT” P. 522 and 523 Paragraph 22) showing that the two 2011 Amortization Schedules he created are not accurate.  This is an Abuse of Discretion for the Court to ignore this evidence showing no Res Judicata per Union Bank’s 2013 Fraud as seen in the May 23, 2013 RESPA Denial (“RT” Vol. 3 PG 748-FAC Exhibit 9-7 “RT” Pg. 524 13 Lines 12 to 24) (“RT” Pg. 574 to 576 Arguments Paragraphs 105 to 111) showing no Res Judicata with Union Bank’s actions in 2013.  The Court found that Union Bank did a Rescission on November 23, 2011 which is not seen in the June 25, 2013 (Proof of Claim) (“RT” Pg. 787 -FAC Exhibit # 10-4) Presented to the Court pleading an undisclosed Rescission date of December 26, 2011, that took Respondent until June 27, 2013 to provide in an email (“RT” PG 746 Exhibit # 9-5 and “RT” 788-EX.10-4) showing the Court that the two Amortization Schedules Created by Union Bank’s Attorneys where not official Union Bank Documents.  Union Banks Attorney Robert B. Forouzandeh admits in (“RT Vol. 3 P. 753 Exhibits 9-12 against Ex. P. 9-14) to creating the Amortization Schedules on January 5, 2015!  The Court in its December 3, 2015 Decision believes that the Statute of limitations begins with the Amortization Schedules Created by Union Bank’s Attorney Robert B. Forouzandeh on May 6, 2011 in (“RT” Pg. 675 to 685-FAC Exhibit # 5-1).  The First Amended Complaint was filed on September 4, 2015 (“RT” Vol. 2 PGS 512 to 626).  A Memorandum of Points and Authorities (“RT” Vol. 3 Pgs 640 to 661) was submitted with (“RT” Vol. 3 Exhibits. 1-25 Pgs. 662 to1168 “RT” Vol. 4 ) was submitted September 4, 2015, per amortization schedules created by Union Bank’s Attorneys.  Defendants Demurred on October 9, 2015 claiming to have done a Rescission of the Oceano Nursery SBA loan prior to Appellant filing Bankruptcy on September 15, 2011 (“RT Vol. 5 P. 1214” P. 8 Lines 17 to 19).  These two May 6, 2011amortization schedules were created by Appellant Attorneys and was not Union Banks documents per (“RT Vol. 5 P. 1320 to 1322” Vol 5 Proof of Claim).     Appellant filed his Opposition on November 20, 2015 and provided a CD of the April 13, 2012 Bankruptcy Conformation hearing, which was provided by Bankruptcy Attorney Richard Rossi on November 10, 2015.  Appellant filed a request for Judicial Notice (“RT” Vol. 6 P. 1562 Opposition Exhibits 26, 27, 28 on November 20, 2015) fully disputing Respondents claims of Res Judicata and Statute of Limitations (“RT” P. 1563 Vol. 6).  Defendants on November 24, 2015 (“RT” Vol. 6 P. 1588 to 1596) filed an (Opposition objection to Judicial Notice Ex. # 27) Defendants on November 24, 2015 in an Opposition to Appellant Demurrer Opposition talked and pled a case (“RT” Vol. 6 P.1594 lines 1 to 25 P. 1595 8 Lines 1 to 10 about Plaintiff Request for Judicially Noticed (Augumentated Opposition Exhibit # 27 “RT” Vol. 6 P.1670”) Bankruptcy taped recording Conformation hearing showing the Bankruptcy Courts conformation “Without Prejudice” On April 13, 2012.  Hon Judge Robin Riblet Stated (Augumtated OPP Ex. # 27 P. 3):  “Well, assume for present purposes that they are absolutely correct because I am overruling the objection at this point without prejudice.  So you’re suggesting to me the plan is still feasible?”  Respondent in the November 24, 2015 objection withheld Judge Riblet's comments “Without Prejudice.” (“RT” Vol. 6 P. 1594 Lines 21 to 25.  Respondent in Opposition ignored Federal Bankruptcy Rule 3002.1  Per (OPP Ex. # 27 P.3) as stated by Judge Riblet. “Oh yes, you didn’t comply with Bankruptcy Rule 3002.1. Excuse me it hasn’t been 180 days.”   Respondent ignored Judge Riblet's comments as stated (“OPP Ex. # 27 April 13, 2012 Bankruptcy Conformation hearing).  “Are these attorney’s fees post-petition or pre-petition?” “Both.  To the extent they pre-petition, they should go on the claim. To the extent that they are post-petition, they sort of get shunted aside for a while.” 

            Appellant then filed a Replay (“RT” Vol. 6 P. 1600 to 1627) to Defendants November 24, 2015 Opposition in Plaintiff’s November 30, 2015 Replay Appellant rebutted Defendants November 24, 2015 Opposition on November 30, 2015 and sought Judicial Notice of additional (Opposition Exhibits 29-1”RT” P. 1621 to 29-17 “RT” P. 1626) (Opposition Exhibit # 26, 27 and 28).  (“RT” P. 746 FAC Exhibit 9-5) shows that Union Banks amortization Schedules created by Union Banks Attorneys were not Bank documents and did not start the Statute of Limitations.   Appellant was at the December 3, 2015 hearing requesting Judicial Notice of (Opposition Ex. # 27) per Federal Bankruptcy rule 3002.1 .  The Trial Court P. 3 (“RT” Vol. 6 P. 1631of the December 3, 2015 hearing judgment acknowledges Oral Arguments regarding (Opposition Exhibit # 27) and should have allowed a Second Amended Complaint with this exhibit, which is an abuse of discretion as Appellants cannot claim Res Judicata, having changed loan documents up to June 25, 2013.  The Court believes (“RT” Vol. 6 P. 1631Paragraph two December 3, 2015 that Union Banks actions prior to its December 26, 2011 Rescission is cause for Res Judicata!  This is incorrect as seen in Union Banks June 25, 2013 Email (“RT” Vol. 3 P. 746 Exhibit 9-5).  On December 21, 2015 Appellant filed a request again for Judicial Notice of the April 28, 2016 Augumentated (Opposition Exhibit # 27) providing the Court with a Transcript of the April 13, 2012 Bankruptcy Conformation Hearing, Opposition to Defendants Claim For Attorney Fees.  On December 3, 2015 Hon. Judge Barry T. LaBarbera, made his Judgment on his tentative ruling, oral Arguments, not allowing (Opposition Exhibit # 27) ignoring Testimony (“RT” P. 521 to 525 Paragraphs 20 to 26) (“RT” Vol 3 P. 746 Exhibit # 9-5) and then signed and filed the Judgment of Dismissal with prejudice on December 30, 2015.   Respondent in their January 4, 2016 Motion for Attorney Fees now fully acknowledge their Rescission under legal Arguments.  The Courts findings of a November 23, 2011 Rescission is an Abuse of Discretion as seen in (Vol 3 -“RT” P. 748 FAC Exhibit 9-7) email dated May 23, 2013 by Robert B. Forouzandeh refusing a RESPA request of Union Bank) Per the (“RT” Vol. 2 P. 524 (FAC P.13 Paragraph 25) regarding the restraining order talked about by the Court (“RT” P.1629 P. 1 paragraph 3).  The Court in its abuse of Discretion ignores Union Banks December 26, 2011 Rescission made known in Debtors (FAC Exhibit 9-5 “RT” P. 746 and 10-4 “RT” P. 788) (“RT” P. 521 to 525 Paragraphs 20 to 26)

III.  STATEMENT OF APPEALABILITY

            Hon. Judge Barry T. LaBarbera, issued his Adopted Tentative ruling on December 3, 2015 and his Judgment on December 30, 2015 allowing Union Bank’s Attorneys Amortization Schedules (“RT” Vol. 3 P. 675 to 685 FAC Ex. # 5) created by Union Banks Attorney Robert B. Forouzandeh per his statements (“RT” Vol 3 P. 753) in place of Certified SBA loan Documents created later and (“RT” Vol. 3 P. 662 to 1178 Exhibits 1, 6, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20 25, Opp. Exhibit # 27, Opp. Reply Ex. 29-1 to 29-2.)  The Court, refused Judicially Noticed Exhibits 26, 27 and 28 P. 1 (see footnotes) in his ruling (“RT Vol. 6 P.1629) without Commenting, on (Opposition Reply Exhibits # 29- 1 to 29- 17).  The Court failed to understand Union Bank’s Attorney Robert B. Forouzandeh Extrinsic Fraud per the Amortization Schedules he created (“RT” Vol. 3 P. 675 to 685 FAC Ex. # 5).  The Court failed to understand Union Bank’s Changed (Proof of Claim) provided to Appellant for the First time (“RT Vol. 3 P. 785 to 789) on June 27, 2013 (FAC Ex. 9-5 “RT P. 746 and “RT P.7-8 Ex.10-4) showing no res judicata as further explained below.  The Court misunderstood the statute of limitations per amortization schedules (“RT” Vol. 3 P. 675 to 685 FAC Ex. # 5) created by Union Bank’s Attorney Robert B. Forouzandeh, per official Union Bank documents (FAC Exhibits 1-1, 1-3, 1-4, 5-1, 10-4, 13 14-1, 20 “RT” P. 662 to 1178).  The Court failed to talk about Civil Code section 338(d)  and Civil Code section 337(3)  Menioned throughout the (FAC).  Hon. Judge Barry T. LaBarbera, Judgments became final and appealable pursuant to Civil Code section 904.1 on December 30, 2015.

IV.  STATEMENT OF FACTS

            The December 3, 2015 decision by Hon. Judge Barry T. LaBarbera would not allow Judicially, noticed (Exhibits 26, 27, 28, 29-1 to 29-17 “RT” Vol. 6 P. 1629 to 1632) showing no adjudication or Res Judicata and that Union Bank’s Breach of Written Contract/Rescission was not prior to May 19, 2011 pled in the (“RT”Vol. 2 P. 572 to 576 Paragraphs 101, 102 103, 104, 105, 106, 109, 110, 111).  This is an Abuse of Discretion as Respondent December 26, 2011 Rescission is within the Statute of Limitations for Civil Code section 337, Civil Code section 338(d) and Civil Code section 337(3)  that Respondent finally provided June 27, 2013 as pled in the (“RT” Vol 2 P. 572 to 576) after the May 23, 2013 RESPA Denial (“RT Vol. 2 P. 524 Paragraph 25).  (“RT” Vol. 2 P. 541 to 542 FAC P. 30 to 31 Paragraph 55 shows as pled Union Bank’s Loan changes in June 2013 as respondents have no claim for Res Judicata with their continued 2013 Loan changes.  This case has not been litigated and no res judicata has occurred.  The Court talks about the restraining orders issued by Union Bank for asking SBA Loan Question (“RT” P. 1629)- 1 under (foot notes) and Paragraph 3, but ignores the fact in the (“RT” Vol. 2 P. 524) that Respondent used these restraining orders as a prison for stopping Appellant from finding the facts behind Union Bank’s December 26, 2011 Rescission until June 27, 2013 showing no res judicata.  This is an Abuse of Discretion under Civil Code section 352.1 as Union Bank’s restraining order actions are the same as being imprisoned as Appellant could only ask SBA loan Questions of Union Bank’s Attorneys who would not answer questions per Union Bank’s (“RT” Vol. 3 P. 742 January 8, 2013 email Exhibit # 9-1 to 9-3 Ex. 9-4 “RT’ P. 745) Email dated January 24, 2013 and (“RT” P 748 RESPA Email 9-7) dated May 23, 2013 per the arguments in the (“RT” P. 521 to 523 P. 10, 11 and 12 Paragraphs 19 to 23).  Appellant in the (FAC) Pled Civil Code section 337.( “RT” Vol. 2 P. 518 to 526) that the Court ignored and did not discuss.  For the Court to ignore Civil Code section 337 is an Abuse of Discretion.

            Appellant in the (FAC) with Union Bank’s undisclosed December 26, 2011 Rescission per “RT” P. 785 to789 Exhibit #10) June 25, 2013 Loan Transaction History, Pled the facts under Civil Code section 337(3) . “RT” Vol. 2 and 3 Pages 522 to 613 (FAC) Pages 11-12-14-15-16-17-18-19-20-22-24-25-27-28-29-30-31-32-34-36-37-38-39-40-41-42-44-46-47-48-49-52-53-56-58-61-62-65-68-74-75-76-77-78-79-81-84-86-87-88-89-90-91-92-93-94-95-96-98-99-100-101-102.   For the Court to ignore Civil Code section 337(3)  is an Abuse of Discretion.

            The Courts Abuse of Discretion in ignoring (FAC Exhibits 1-1, 1-3, 1-4, 5-1, 10-4, 13 14-1, 20-1) to claim (“RT” Vol. 6 P. 1630 Paragraph # 6) in his December 3, 2015 decision.  “Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.” Is a full Abuse of Discretion as Union Bank’s own records showed up to November 7, 2011; Union Bank had not done a Rescission and the Principal Balance was $390,996.61 in (“RT” Vol. 3 P. 839 Ex. # 14-1) dated November 7, 2011!  The Courts December 3, 2015 Decision claims Union Bank did their rescission on November 23, 2011 which is within the four year Statute of Limitations and is an Abuse of Discretion as this is an email from Union Bank’s Attorney and not an official Bank Rescission document.  Union Banks Monthly Payment notice (“RT” Vol. 3 P 838 Ex. 13) September 23, 2011 Shows that Union Bank had not done a rescission prior and (“RT” P. 662 to 665 “RT Vol. 3 # 1-1, 1-3, 1-4) being the SBA Certified August 29, 2011 Loan Transaction History showed no Rescission, prior!  The Court failed to understand that Union Bank never provided an accounting of their Rescission until June 27, 2013 or their June 25, 2013 Loan changes under Civil Code section 337(3).  This could not have been argued eariler showing no Res Judicata or adjudication.  

            For the Court to claim (“RT” Vol. 6 P. 1631 December 3, 2015 paragraph 8), that two May 6, 2011Amortization Schedules created by Attorney Robert B. Forouzandeh (“RT” Vol. 3 P. 753 Paragraph 2) with an interest rate of 6% starts the Statute of Limitations is an Abuse of Discretion and make this fully appealable from a June 24, 2011 restraining order answer.  This June 24, 2011 restraining order answer is not Res Judicata per the (FAC Exhibits # 9-5 and 10-4 acknowledged by the Court paragraph 6th December 3, 2015 decision.   In a Second Amended complaint this can be explained further as the two Amortization Schedules created by Union Bank’s Attorney Robert B. Forouzandeh are not Bank documents and should not have been used in the courts starting point for Statute of Limitations and Res Judicata.  This is an Abuse of Discretion.

            Appellant’s (“RT Vo. 3 P. 788 Exhibit # 10-4) Union Bank June 25, 2013 Loan Transaction History shows that the Courts November 23, 2011 (“RT” Vol. 3 P. 783) email from Attorney Robert B. Forouzandeh (“RT” Vol. 3 P. 783Exhibit 9-43) Rescission did not occur until December 26, 2011.  Res judicata could not happen as it took Union Bank until June 27, 2013 within the 3 year Statute of Limitations under Civil Code section 338(d)  Fraud and Civil Code section 337(3)  Rescission to provide an accounting of their actions.  An action for fraudulent misrepresentation lies when the defendant is charged with knowledge of falsity and an intent to deceive (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, sections 586, 588, at pp. 2224-2227).  Defendant‘s December 26, 2011 Rescission was against Civil Code section 1689 under Rescission, as Defendants did not notify Appellant or make Appellant whole. ―When the defendant is guilty of fraudulent concealment of the cause of action the statute is deemed not to become operative until the aggrieved party discovers the existence of the cause of action. (Kane v. Cook, 8 Cal. 449; Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203 [30 P.2d 39].”  Appellant in the (FAC) Pled Civil Code section 338(d)  --On Pages 8-12, 14-17, 19-22, 24-25, 27-32, 34, 36-42, 44-45, 47-49, 53, 56, 57, 60, 62-63, 65, 67, 70, 74-79, 81, 83-85, 87-103.  For the Court to ignore this is an Abuse of Discretion with Respondent June 27, 2013 E-mail mentioned by the Court per (FAC Exhibit 9-5 “RT” P. 1630 Paragraph 6).  The Trial Court in its Abuse of Discretion on December 3, 2015 decision (“RT” Vol. 6 P. 1631 paragraph 9) ignored as Pled in the (“RT” Vol. 2 P. 593, 594, 595 # 2, 3, 4, 6 and 7) Civil Code section 338(d) and Civil Code section 337(3) .

3.  (“With respect to actions based on fraud, the statute of limitations is tolled when plaintiff is able to show the defendant fraudulently concealed facts which would have led him to discover his potential cause of action. ‘Technical rules as to when a cause of action accrues apply therefore only in those cases which are free from fraud committed by the defendant. Said section 338, subdivision 4, . . . recognizes the non-applicability of those technical rules where the fraud of the defendant may be so concealed that in the absence of circumstances imposing greater diligence on the plaintiff, the cause of action is deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the defendant by concealing his fraud would effectively block recovery by the plaintiff because of the intervention of the statute of limitations.” (Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 127—128 [211 Cal.Rptr. 271, internal citation omitted.)  See (FAC) Appellant Exhibit # 10-4 dated June 25, 2013.

4.  (“Courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule. The rule is generally applicable to confidential or fiduciary relationships. The fiduciary relationship carries a duty of full disclosure, and application of the discovery rule ‘prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.’” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810, internal citations omitted.)“ See (FAC) Appellant (Exhibits 9-5 and 10-4) dated June 25, 2013 and June 27, 2013 showing the Courts Abuse of Discretion as Union Bank withheld the December 26, 2011 Rescission from Appellant until June 27, 2013 by use of Restraining orders in 2012 and 2013, per the (FAC Exhibit # 8).

            Defendants use of restraining orders in Plaintiffs (Exhibit # 8 “RT” P. 707 to741) as noted in the December 3, 2015 Superior Court decision for accounting questions per Union Bank’s May 6, 2011 Amortization Schedules and May 19, 2011 Notice of Default, falls into the Four year Statute of Limitations for Breach of Written Contract.  As pled in the (“RT” P. 616 P. 105 line 19 Exhibit 6-5 to 6-8) shows Respondents restraining order actions during this complaint on July 16, 2015.  In a Second Amended Complaint, Appellant can further explain the restraining order actions by Robert B. Forouzandeh Per the July 6, 2015 (“RT” P. 698 Exhibit Testimony 6-10 to 6-20) showing that the only contact Appellant has been allowed to have with Union Bank’s has been through Union Bank’s Attorneys Robert B. Forouzandeh and Diana Jessup Lee who created the amortization schedules used in the Courts December 3, 2015 decision, contributing to the Appellants delay in filing suit. [Bollinger v National Fire Ins. Co. (1944) 25 C2d 399, 411 equitably tolled (extended, suspended, put on hold).  See (“RT” Vol. 3 P.698 Exhibit 6-13 Lines 9-13. 

            Honorable Judge Barry T. LaBarbera, Abuse of Discretion is seen in this December 3, 2015 Decision statement (“RT” Vol. 6 P. 1629) Notes Stating:

“1 The Court grants Defendant’s request for judicial notice of various pleadings including, but not limited to, the restraining order and bankruptcy court proceedings that will be discussed infra. “If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. (Citation)” (Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1299) “In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state. (Citations.)” (Id.) Even so, most if not all of the documents, including the certain bankruptcy pleadings, are attached as exhibits to the FAC such that they are within the complaint and do not require judicial notice. Plaintiff’s request for judicial notice as to exhibits 26, 27 and 28 is denied, the request as to the other exhibits is unnecessary as those exhibits are attached to the FAC.”

 

            This is an Abuse of Discretion.  The Court ignores Bankruptcy (“RT’ Vol. 3 P. 882 to 883Exhibit # 16-38 to 16-39) Explaining, Federal Bankruptcy Rule 3002.1 P. 3 lines 1 to 21 along with Defendants Pre Petition Attorney fees. 

            Plaintiffs (“RT” Vol. 4 P. 978 FAC Ex. 20-1) is an email from Bankruptcy Attorney Chris Gautschi showing the Bankruptcy Courts Conformation, hearing was held “Without Prejudice” regarding Attorney Fees Etc.   

            Appellant (Augmented Opposition Ex. # 27) Under Federal Bankruptcy Rule 3002.1 shows no Res Judicata.

            As pled in the (“RT” Vol. 2 P. 560 to 561) Paragraph 86 of the (FAC) Complaint P 49 and 50 lines 24 to 27 and 1 to 2 show the beginning of Union Bank’s Breach of Contract as stated and pled in the (FAC): 86.  Defendants on January 8, 2013 in Defendants Attorney Diana Jessup Lees statements # 10 Plaintiffs (Exhibit # 9-2) shows Union Bank’s Breach of Written Contract and Fraud.  Defendants admit that in November the Oceano Nursery Principal Balance was $390,996.91 and acknowledges the 2007 forbearance agreement.  Defendant had not informed the United States Bankruptcy Court of Defendants December 26, 2011 SBA loan changes or Plaintiff. “

            The Trial Court failed to acknowledge (“RT” Vol. 6 P. 1600 to 1627) November 30, 2015 Reply to Defendants Opposition (Exhibit # 29-1 to 29-2) explaining the June 30, 2011 Comptroller of the Currency Administrator of National Bank’s letter showing Defendants November 24 2015 Opposition to Pre-Bankruptcy claimed Rescission to be false.  In a Second Amended Complaint the June 30, 2011 Comptroller of the Currency Administrator of National Bank’s letter will show that the Statute of Limitations had not run prior to December 26, 2011.

            Honorable Judge Barry T. LaBarbera, (“RT” Vol. 6 P 1630 Paragraph 6) in his December 3, 2015 decision established Union Bank’s SBA Loan Rescission date of November 23, 2011 which is within Civil Code section 337. As the Court Stated:

However, in a November 23, 2011 email, counsel informed Plaintiff that the difference in the online information was due to Defendant’s recalculation of the principal based on a rescission of the Agreement. Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.”

 

            Honorable Judge Barry T. LaBarbera, (“RT”P. 1631 Paragraph 10) in his decision  established a Rescission date of November 23, 2011 which is within Civil Code section 337 during the first bankruptcy. This is an Abuse of Discretion for the Court to claim that the Statute of limitation was prior to May 19, 2011 from Amortization Schedules Created by Union Bank’s Attorneys (RT Vol. 3 P. 753).  The Court ignored Oral Arguments on December 3, 2015 regarding Federal Bankruptcy Rule 3002.1per Union Bank’s Fraud and Breach of Fiduciary Duty; As Honorable Judge Barry T. LaBarbera, Stated:

“Rather, as indicated above, Plaintiff was informed in a November 23, 2011 email that the Agreement had been rescinded and that there was a recalculation of the principal balance owed based on that rescission. Because the fraud and breach of fiduciary duty claims are based on the alleged action taken on December 26, 2011, which Plaintiff was aware of prior to his alleged discovery date of June 27, 2013, those causes of action are barred by the applicable three year statute of limitations.”

 

            Honorable Judge Barry T. LaBarbera, is incorrect in his decision as stated above and below.  This does not rule out the four year statute of limitations.  Union Bank’s Attorney Robert B. Forouzandeh would not provide a loan accounting with (“RT” Vol.3 P. 748 FAC Exhibit 9-7 RESPA Denial “RT” 524 (FAC) P 13 Lines 12 to 24) until June 27, 2013(FAC Exhibit # 10-4).  The Court States (“RT” 1631 P. 3 Paragraph 8) against the Courts claimed rescission date of November 23, 2011 regarding Res Judicata!

“Again, as emphasized by Defendant in its reply, all of the allegations asserted in this action where known by Plaintiff when he filed his objections in the bankruptcy proceedings. This is evident based on the detailed answer that Plaintiff filed on June 24, 2011, to Defendant’s request for a restraining order. Thus, all of Plaintiff’s claims are barred by res judicata.”

 

            This is an Abuse of Discretion against Civil Code section 338(d) to Civil Code section 337(3) per the (“RT” Vol. 3 P. 695 to 405 Exhibit 6-10 to 6-20 July 6, 2015) Restraining order Court actions by Robert B. Forouzandeh.   The Court has ignored (“RT” Vol. 3 P. 707 to 720 Exhibits P. 707 to 720) that Respondent’s claims are not accurate in (Exhibit 9-5) per (Res Judicata) talked about in depth by the Court.

            The Court ignored restraining order (“RT” Vol. 3 P. 721 to 741Exhibits 8-15 to 8-35) that Union Bank claims are not accurate on June 27, 2013 in Exhibit 9-5 talked about in depth by the Court as also shown to be fraudulent in Judicially Noticed (FAC) Exhibits.  It took Appellant until June 27, 2013 to acknowledge that the Restraining Orders accounting in 2011, 2012 and 2013 (“RT” Vol. 3 P. 735 to 738 Exhibits 8-29 to 8-32) was Fraudulent per (FAC Exhibits 9-1 to 9-5).  The Court ignores the fact that Union Bank had not done a Rescission on June 24, 2011 from its own Evidence!

            It is an Abuse of Discretion for the Court (“RT” Vol. 6 P. 1631 paragraph 9 December 3, 2015 decision to establish Union Bank’s Fraud and Breach of Fiduciary Duty from December 26, 2011 as Union Bank failed to comply with Federal Bankruptcy Rule 3002.1 per (FAC Ex. 20-1) and (Opposition Ex. # 27) not allowed by the Court filed on November 20, 2015 and refilled on December 21, 2015 as Augmented April 28, 2016 into this record.

            As pled in the (“RT” Vol. 2 P. 518 Paragraph 13lines 10 to 13) show the beginning of Union Bank’s Breach of Contract as stated and pled in the (FAC): Defendant’s actions on December 26, 2011 are the basis for this Breach of Written Contract law suit. Plaintiffs discovery on June 27, 2013 falls under Code of Civil Procedure section 338(d) and Code of Civil Procedure section337(3).”. 

            The Courts statement (RT” Vol. 6 P. 1630 Paragraph 6). “Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.” Is a full Abuse of Discretion as during Bankruptcy up to November 7, 2011 Union Bank had not done a rescission per (FAC Exhibits 1-1, 1-3, 1-4, 5-1, 9-5, 10-4, 13 and 14-1) along with (Opposition Ex. # 27).  Union Bank had not recalculated the SBA Loan prior to December 26 2011 against the Courts date of November 23, 2011.

The Court in its Abuse of Discretion claims December 3, 2015 (“RT” Vol. 6 P. 1631 and 1632 paragraph 11 that:

Contrary to Plaintiff’s allegation that the breach occurred on May 19, 2011, the FAC contains other allegations that affirm that Plaintiff was fully aware of his breach of contract claims prior to May 19, 2011, such that the first cause of action is barred by the four year statute of limitations.”

 

            This is not the case as pled in the (“RT” 662 to 665-746, 787, 838, 839 FAC Exhibits 1-1, 1-3, 1-4, 5-1, 9-5, 10-4, 13 and 14-1) along with (Opposition Ex. # 27) as on December 26, 2011 Respondent changed Appellant’s (FAC Exhibits 1-1, 13, and 14-1) without informing Appellant or the Bankruptcy Court using Federal Bankruptcy Rule 3002.1 to withhold these SBA loan Rescission changes against Civil Code section 338(d) Civil Code section 337(3)  pled throughout the (FAC).

            The Court in-properly accounts for on December 3, 2015 per (FAC Ex. 9-5) the date of Respondent Rescission and the fact that Appellant’s (FAC Exhibits 1-1, 13, 14-1) Show that Respondent had not done a rescission, prior to November 23, 2011 or make Appellant whole.  The Court, (“RT” Vol. 6 P. 1630 paragraph 6 States:

“Plaintiff alleges that he learned of Defendant’s rescission in a June 27, 2013 email from defense counsel which is attached as Exhibit 9-5 to the FAC. The alleged December 26, 2011 rescission appears to be related to Plaintiff’s assertion that Defendant’s online records reflected a principal balance owing of $390,996.61, while the amount of the balance on statements provided to Plaintiff stated a balance of $400,962.89 owing. However, in a November 23, 2011 email, counsel informed Plaintiff that the difference in the online information was due to Defendant’s recalculation of the principal based on a rescission of the Agreement. Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.”

 

            This is a full Abuse of Discretion under Civil Code section 1689 as the November 7, 2011 online accounting (“RT” Vol. 3 P. 839 Exhibit # 14-1) showed that Union Bank had not done a Rescission prior to bankruptcy and that Appellant’s Breach of Written Contract claim is within the Four Year Statute of Limitations under California Civil Code section 337.  Respondent cannot claim Res Judicata with their withholding the December 26, 2011 Rescission through Restraining orders into 2013!  Code of Civil Procedure section 352.1 use of a California Court applies to respondent actions.  It took Union Banks Attorney Robert B. Forouzandeh till January 5, 2015 to admit to creating the May 6, 2011 Amortization Schedules (“RT” Vol. 3 P. 753) as stated by Robert B. Forouzandeh:  “I stated that my office “in conjunction with Union Bank” created the amortization schedules.”  No Current California Case law allows Bank Attorneys to make their own Bank Records (“RT” Vol. 3 P. 753) against Certified Bank Records dated August 29, 2011 (“RT” Vol. 3 P. 1-1 to 1-4) as the Court abuse of Discretion is seen (“RT” Vol. 6 P. 1631 to 1632) as stated by the Court.  “Contrary to plaintiff’s allegation that the breach occurred on May 19, 2011, the FAC contains other allegations that affirm that Plaintiff was fully aware of his breach of contract claims prior to May 19, 2011, such that the first cause of action is barred by the four year statute of limitations.”  The Court is incorrect with the Certified August 29, 2011 Proof of Claim (“RT” Vol. 3 P. 1-1 to 1-4)!  The Court is incorrect in its Statute of Limitations in (“RT” Vol. 3 P 838 to 844) showing that Union Bank had not done a Rescission prior to December 26, 2011 and that the Statute of Limitations had not expired prior!

V.  SUMMARY OF ARGUMENT

            Union Bank’s use of restraining orders for stopping Bank Loan questions in June 2011 lead to Union Bank’s December 26, 2011 falsified Rescission (Extrinsic fraud) and Breach of Written Contract, per the Courts November 23, 2011 Rescission date findings, Union Bank’s December 26, 2011 Rescission did not make Appellant whole with (“RT” Vol. 4 P. 923 to 974) Changing of Loan documents!  Thus, (“RT” Vol. 2 P. 557 paragraph 79 to 80) not amending IRS 1098 Forms per Defendants Rescission is fraud.

<!--[if !supportLists]-->A.                <!--[endif]-->The Trial Court Applied the Incorrect Statute of Limitations for Breach of Written Contract with Union Banks Attorney admitting to making the Amortization Schedules used in the Courts claim that the Statute of limitations had expired from these Two Amortization schedules created by Robert B. Forouzandeh (“RT” Vol. 3. P.753).

            The Rescission seen in Respondents June 25, 2013 Proof of Claim (“RT” Vol. 3 P. 788 Ex. 10-4) dated December 26, 2011 is within the Four Years Statute of Limitations as pled in the November 20, 2015 Opposition. An action for fraudulent misrepresentation lies when the defendant is charged with knowledge of falsity and an intent to deceive (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, sections 586, 588, at pp. 2224-2227).  Defendant‘s December 26, 2011 Rescission was against Civil Code Section 1689 under Rescission.  When the defendant is guilty of fraudulent concealment of the cause of action the statute is deemed not to become operative until the aggrieved party discovers the existence of the cause of action.  (Kane v. Cook, 8 Cal. 449; Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203 [30 P.2d 39].”  As Pled in the October 9, 2015 Opposition.  “Defendant‘s Demurrer P. 12 B. 1. Is fully disputed as seen in Plaintiffs (FAC Ex. 20-1) and (Demurrer OPP Ex. # 27) disputing Defendants October 9, 2015 Demurrer statements. This bankruptcy tape recording was provided by Richard Rossi on November 10, 2015 and refers to Plaintiffs (FAC Ex. # 20-1) showing no Res Judicata.  Defendant’s fraud and deceit are defined in Civil Code section 1572, 1709, and 1710.”

<!--[if !supportLists]-->B.                 <!--[endif]-->The Trial Court Applied the Incorrect Statute of Limitations for Fraud

Bollinger v National Fire Ins. Co. (1944) 25 C2d 399, 411 equitably tolled (extended, suspended, put on hold).  See Judge Colleen k. Sterne Statements (“RT” Vol. 3 P. 698 Exhibits 6-13 Lines 9-13).  (Kane v. Cook, 8 Cal. 449; Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203 [30 P.2d 39].  The (Extrinsic fraud) in the December 26, 2011 Rescission (FAC Ex. 10-4) was provided by Respondent on June 27, 2013 against Federal Bankruptcy Rule 3002.1 pled in the (“RT Vol. 6 P. 1555) November 20, 2015 Demurrer (Opposition P. 9).   VI. PLAINTIFF HAS PLED ALL OF THE ELEMENTS OF FRAUD.” The Court is fully aware of Respondents May  23, 2013 (“RT” Vol. 3 P. 748 Exhibit 9-7 RESPA Denial as stated “RT” Vol. 2 P 524 Paragraph 25) by Union Bank, showing no Res Judicata per the June 25, 2013 Loan Transaction History.

<!--[if !supportLists]-->C.                <!--[endif]-->The Trial Court is Correct with Perjury

Union Bank’s Ongoing Perjury will need to be addressed within the Bankruptcy Court.

<!--[if !supportLists]-->D.                <!--[endif]-->The Trial Court Applied the Incorrect Statute of Limitations for Breach of Fiduciary Duty (“RT” Vol. 3 P. 753).

 

As pled in the November 20, 2015 (“RT’ Vol. 6 P.1558 Opposition P. 12 Lines 12 to16).  “―Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud. ― (Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 235 [153 P.2d 325].) fn. 25 [11]”

The Rescission seen in Respondent’s June 25, 2013 Loan Transaction History Appellant (Ex. 10-4) is dated December 26, 2011 within the Four Years Statute of Limitations As pled in the November 20, 2015 Opposition.  “With, Robert B. Forouzandeh false (Proof of Claim) Declarations/Concealment against the June 25, 2013 (Proof of Claim); Fiduciary Duty is pled in (“RT” Vol. 2 P. 583 to 584 Paragraph 133 under Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1044.  Leading up to financial damages Paragraph 135 to 167. CCP 340.6(a)(3):”

<!--[if !supportLists]-->E.                 <!--[endif]-->The Trial Court Applied the Incorrect Statute of Limitations for Negligence

The Rescission seen in Respondent’s June 25, 2013 (Proof of Claim) Appellant’s is dated December 26, 2011 within the Four Years Statute of Limitations.  As Pled in the  November 20, 2015 (Demurrer Opposition).  Defendants third claim (Elements) is seen in the (FAC) with Defendants Attorney Robert B. Forouzandeh Code sections 1572, 1709, and 1710 admitting to changing loan documents as per Civil Code section 337(1) .”

<!--[if !supportLists]-->F.                 <!--[endif]-->The Trial Court Failed to review and acknowledge “RT” Vol. 3 P. 753).

            (FAC Exhibits 1-1,13, 14-1) as mentioned above showing that the May 6, 2011 Amortization Schedules created by Robert B. Forouzandeh and not by Union Bank per the (FAC Ex. 9-5) Acknowledged by the Court in its Directed Judgment Pursuant to Civil Code section 631.8 is not Substantiated by the Record and should not have been abused by the Court.  Robert B. Forouzandeh admitted in June 27, 2013 (“RT” Vol. 3 P. 746) that these Amortization Schedules he created where not accurate.  The Courts Abuse of Discretion is in the use of these Amortization Schedules starting the Statute of Limitations (“RT” Vo. 6 P. 1631 to 1632) as they are not Bank Records.

<!--[if !supportLists]-->G.                <!--[endif]-->The Granting of Respondents Judgment on their Pleadings Deprived Appellant of his Right to Petition Union Bank’s Theft of $45,171.20 charged twice per (“RT” Vol. 2 P. 541 regarding Exhibit # 11). 

            This overcharging of Appellants SBA Loan is continued and ongoing yearly Bank Fraud and Grand Theft.

<!--[if !supportLists]-->H.                <!--[endif]-->The Trial Court improperly applied the Statute of Limitations.

            The Trial Court improperly applied the Statute of Limitations from Amortization Schedules created by Appellants Attorneys over actual Union Bank Loan documents, Substantially Prejudicing Appellant with the Courts determination of a November 23, 2011 Rescission against (“RT” Vol. 3 P.785 to 789 Exhibit 10-4 dated June 25, 2013).  As noted (“RT” Vol. 2 P. 541 to 542).  Defendants fraudulently correcting documents in June 2013 make this a Civil Case outside of Bankruptcy with no Res Judicata.

<!--[if !supportLists]-->I.                   <!--[endif]-->The Trial Court did not take Judicial Notice.

             The Trial Court did not take Judicial Notice of Appellant’s Exhibit # 27 April 13, 2012  or Augmented (Opposition Ex. # 27) Conformation hearing showing Respondent were by June 24, 2012 under Federal Rule 3002.1 to provide an accounting of Pre and Post-Petition Attorney fees, in an amended (Proof of Claim), Substantially Prejudged Appellant as Respondents took until June 27, 2013 to provide a (Proof of Claim) that created on June 25, 2013 for the First time making this a Civil Case per (“RT” Vol. 2 P. 541 and 542 with Defendants Fraudulently correcting loan documents in June 2013.

<!--[if !supportLists]-->J.                  <!--[endif]-->Abuse of Discretion.

The Trial Courts Abuse of Discretion is seen in EVIDENCE CODE SECTION

451, 452, 453, 455 and 459 with Judicial notice not being allowed in Opposition Exhibits # 26, 27, 28 as stated by the Trial Court.

“Plaintiff’s request for judicial notice as to exhibits 26, 27 and 28 is denied, the request as to the other exhibits is unnecessary as those exhibits are attached to the FAC.”

            The Trial Courts Abuse of Discretion is seen in this statement as the Court allowed judicial Notice to Defendants, but not to Appellant.  The Court States (“RT” Vol. 6 P. 1629).

“1 The Court grants Defendant’s request for judicial notice of various pleadings including, but not limited to, the restraining order and bankruptcy court proceedings that will be discussed infra.”

            The following are code sections (E, G, under Section 452) (A, B under Section 453) (A, B,) Under Section 455 showing the Trial Court acknowledged Opp. (Exhibits # 26, 27 and 28) Along with (Opp Reply Exhibits 29-1 to 29-17) presented to the Court. 
Standard of Review for Judicial Notice
            Under section 459 of the Evidence Code, reviewing courts have both a mandatory duty and a discretionary power to take judicial notice. (Evid. Code, section 459.) A reviewing court is required to take judicial notice of any matter the trial court has properly judicially noticed or should have judicially noticed. (Evid. Code, section 459, subd. (a).) However, a reviewing court is not required to take judicial notice of such matters in the same tenor as that used by the trial court. (Evid. Code, section 459, subd. (a).)  “In determining the propriety of taking judicial notice of a matter, or its tenor, The reviewing court has the same power the trial court has under Evid. Code, section 454(b).  (2 Jefferson, Cal. Evidence Benchbook (3d ed. 1997) section 47.68, at p. 1093.)

Judicial Notice of Truth of Facts in Court Records

            “Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (2 Jefferson, Cal.  Evidence Benchbook, supra, section 47.1, at pp. 1064-1065.) The court may in its discretion take judicial notice of any court record in the United States. (Evid. Code, section 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records.  (See, e.g., Columbia Cas. Co. v Northwestern Nat’l Ins. Co. (1991) 231 Cal.App.3d 457; Day v. Sharp (1975) 50 Cal.App.3d 904.)”  The April 13, 2012 Tape Recording of the Bankruptcy Conformation is an official Record of the Confirmation hearing denied by the Court showing no Res Judicata.  Appellant filed judicial Notice on December 21, 2015 with this document in Opposition to Defendants claim for Attorney fees.  

VI.  LEGAL DISCUSSION

            The Trial Court Applied the Incorrect Statute of Limitation for Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence.  The Trial Court ignored Judicially Noticed (FAC Exhibits # 1-1, 1-3, 1-4, 5-1 9-5,10-4, 13, 14-1, 20-1, and 27 seen in (“RT” Vol. 6 Pages 1661 to 1670), Judicially Noticed, (Opposition Exhibits 26, 27 and 28) Along with Respondents Pre Petition (Demurrer Ex. # 6) as Union Bank had not recalculated the SBA Loan prior to December 26 2011.  This is an Abuse of Discretion as Respondents October 9, 2015 (“RT” Vol. 5 P. 1314 to 1328 Demurrer Exhibit # 6) was prior to Union Bank’s December 26, 2011 rescission changes made known on June 27, 2013.  The two Amortization Schedules (“RT” Vol. 3 P. 675 to 685 Ex. # 5) letter does not start the four year Statute of Limitations for Breach of Written Contract with Union Bank’s June 27, 2013 email and Loan accounting, showing no Res judicata.  Union Banks actions have not been litigated, nor judged on the merits of this case.  There has been no final judgment.  Under a “Transaction of Occurrence” test.  Respondent’s actions could not have been argued prior to Union Banks June 25, 2013 (Proof of Claim) and Robert B. Forouzandeh finally admitting January 5, 2015 (“RT” Vol. 6 P. 753 Ex. 9-12) to creating Amortization Schedules that are not Bank Records seen in (“RT” Vol. 6 P. 746 Ex. 9-5) mentioned by the Court. 

            Honorable Judge Barry T. LaBarbera, Granting Respondent’s request for judicial notice of various pleadings including, but not limited to, the restraining orders and bankruptcy court proceedings prejudiced Appellant as this did not show the facts and Exhibits necessary to show that this action is not barred by res judicata.  As Pled in the (“RT” P. 584 Vol. 2 Paragraph 134). 73 Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 809, 35 Cal.Rptr. 797, 110 P.3d 914. Casualty Insurance Company v. Rees Investment Company (1971) 14 Cal.App.3d 716, 720, 92 Cal.Rptr. 857.  Appellants, December 26, 2011 Rescission has not been litigated as provided June 27, 2013.

            As pled in the October 9, 2015 (Demurrer Opposition) “Res Judicata is not a bar to claims that arise after the initial complaint was filed.  (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)  Union Bank’s 12/26/2011 Rescission could not have been argued in Bankruptcy as it arose after the Bankruptcy was filed and Respondent withheld this information until June 27, 2013. The Court is fully aware of Union Bank’s May  23, 2013 RESPA Denial (FAC Exhibit 9-7 P 13 Lines 12 to 24) (FAC P. 63 to 65Arguments Paragraph 105 to 111) showing no Res Judicata. 

            If the plaintiff is unaware of facts when filing a complaint, res judicata will not bar subsequent litigation. (Id. At p. 914, original italics.) Doe v. Allied-Signal, Inc. (7th Cir.1993) 985 F.2d 908, in which a second suit was filed after plaintiff discovered new facts.”  New facts per the (FAC) are the June 27, 2013 email and June 25, 2013 Proof of Claim (FAC Exhibits 9-5-10-4-9-12) as pled in the (FAC).

            Respondent did not establish all of the necessary elements for res judicata. As emphasized the trial Court would not allow (Opposition Exhibit # 27) showing the April 13, 2012 bankruptcy confirmation hearing proceedings and the validity and accounting of the loan required by Respondent under Federal Bankruptcy Rule 3002.1.  Respondent’s Post Petition and Pre-Petition Attorney Fees and charges were not adjudicated in the bankruptcy proceedings or the Restraining Order proceedings.  Rule 8.252. Judicial notice; findings and evidence on appeal should be allowed under Evidence Code section 459 with a separate motion with a proposed order as this matter to be noticed is relevant to the appeal as presented in Plaintiffs Opposition and Reply and that Judicial Notice was not taken as this matter is subject to judicial notice under Evidence Code section 451, 452, or 453; as this relates to proceedings occurring after the order of judgment that is the subject of this appeal.  This Trial Courts Abuse of Discretion is seen in the following December 3, 2015 pre decision arguments.  Respondent’s Fraudulent Rescission is within 3 years as provided for the first time and discovered on June 27, 2013 Civil Code section 337(3) .  Respondent Counsel for the first time on June 27, 2013 providing a Loan Transaction History-(Proof of Claim) is within Civil Code section 338(d) under fraud.  Union Bank’s claimed Rescission as acknowledged by the Court is an act of willful Misconduct Pled in the (“RT” Vol. 2 P. 514 Paragraph 6)  (California Bank & Trust v. DelPonti (2014) 232 Cal.App.4th 162, 167).   “(In California Bank & Trust, there was substantial evidence in the form of an unambiguous e-mail from the bank that if the guarantors performed certain tasks the guarantor’s obligations would be mitigated.  As such, the trial court in California Bank & Trust found that the bank was guilty of willful misconduct.)”

As Pled in the (“RT” Vol. 2 P. 528 Paragraph 34) shows the Statute of Limitations under Civil Code section 338(d) fraud and Civil Code section 337(3) Rescission could not be discovered until June 27, 2013.  As a matter of law." (Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442 [186 Cal.Rptr. 357].)  Facts not contained in the separate statement do not exist. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [282 Cal.Rptr. 368.)  Respondent Rescission did not occur prior to December 26, 2011 as shown in the (“RT” Vol. 2 P. 529 Paragraphs 34 to 36)  See e.g. Klein v. First Edina National Bank (1972) 243 Minn. 418 [196 N.W.2d 619, 622-623, 70 A.L.R.3d 1337]; First National Bank in Lenox v. Brown (Iowa 970) 181 N.W.2d 178, 182-183; Stewart v. Phoenix Nat. Bank (1937) 49 Ariz. 34 [64 P.2d 101, 106]; Deist v. Wachholz (1984) 208 Mont. 207 [678 P.2d 188, 193-195].  Union Bank’s Fiduciary Duty was created between a bank and a borrower.  The cases above in the (FAC) involved situations similar in which a bank allegedly withheld information from the borrower about relevant transactions or the borrower relied on advice of the bank.  In this case Union Bank withheld their December 26, 2011 Rescission against Appellant (FAC Exhibits 1, 13 and 14-1) and (FAC Exhibit 9-7 RESPA Refusal.  (“RT’ Vol. 6 P. 1631Paragraph 10) of the December 3, 2015 Superior Court Decision regarding Respondent’s claimed Rescission falls under the above case law (misconduct.)”

            As Pled in (“RT” Vol. 2 P. 529 to 530 Paragraph # 36). -- “36. The Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence lawsuit against Union Bank involves situations in which Union Bank has intentionally withheld information from the Appellant and the United States Bankruptcy Court about relevant transactions and loan changes made by Respondent on December 26, 2011 from the Appellant, Appellant’s Council and the United States Bankruptcy Court. ‘undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure ....’  (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131 [54 Cal.Rptr. 533]; see Olam v. Congress Mortgage Co. (N.D.Cal. 1999) 68 F.Supp.2d 1110, 1139-1142.) Accordingly, to state a claim for rescission, the plaintiff must ordinarily allege that the party against whom rescission is sought took some advantage of the mental weakness or incapacity of the other party. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, sections 547, 551, pp. 674-675, 679-680.)” 

            In September 2011 Appellant was forced to file Bankruptcy on his SBA Loan from Respondent, Attorneys emails from May 19, 2011 to September 7, 2011  Appellants (“RT” Vol. 3 P.742 to 783 Exhibits).  In Appellant (“RT” Vol. 3 and 4 P. 900 to 922) November 18, 2011 Bankruptcy CASE NO. ND11-14393RR Doc 31 Entered 11/8/2011--Respondent had not done a Rescission or changed Respondent’s Certified SBA Loan documents Per the FAC Bankruptcy, Attorney Richard Rossi in his arrears accounting of $107,186.12 included Defendants claimed legal fees, late charges etc. on top of actual Principal and interest at 6% owed Respondent per Respondents August 24, 2011 (Payment Notice) Appellant (“RT” Vol. 4 P. 933Exhibit 17-2)  shows the Court Abuse of Discretion as  the Court established a date prior to Bankruptcy using two Amortization Schedules created by Attorney Robert B. Forouzandeh. 

         The San Luis Obispo Courts statement (“RT” Vol. 6 P. 1629 Paragraph # 2)

“Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.”

            Is a full Abuse of Discretion as during Bankruptcy up to November 7, 2011 Union Bank had not Re-Calculated or done a Rescission per (FAC) (Exhibits #1-1, 13 and 14-1) Similar to (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)” Appellant’s fraud claim for Respondent’s December 26, 2011 Rescission is not barred by res judicata because it did not accrue until after the Bankruptcy was filed and was withheld from Appellant and the BK Court with Respondent’s Extrinsic fraud (Restraining Orders until June 27, 2013).  The Court has misunderstood the fact that Union Banks Attorney Robert B. Forouzandeh has admitted June 27, 2013 in (FAC) Exhibit 9-5 that his and not Union Banks prior loan calculations are not accurate! This has not been litigated and there currently is no California Case law allowing Bank Attorneys to make up their own Bank loan documents from two Amortization Schedules!

            The purpose of res judicata is “to prevent repetitive suits involving the same cause of action.” (Ripplin Shoals Land Co., LLC v. U.S. Army Corps of Eng’rs, (8th Cir. 2006) 440 F.3d 1038, 1042.)  To determine whether res judicata bars a party from asserting a claim, three elements must be considered: (1) whether the prior judgment was entered by a court of competent jurisdiction; (2) whether the prior decision was a final judgment on the merits; and (3) whether the same cause of action and the same parties or their privies were involved in both cases.  All Three of these fail in the December 3, 2015 decision as seen in Appellants Judicially Noticed (Opposition Exhibit # 27) per (FAC Exhibits 1-1, 9-5,10-4, 13 and 14-1).

            In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state. (Id. at p. 481; Safeco Insurance Co. v. Tholen (1981) 117 Cal. App. 3d 685, 696 [173 Cal. Rptr. 23]; Evid. Code, section 452.)  Appellants Judicially Noticed (Opp Exhibit # 27) records and testimony by Honorable Judge Robin L. Riblet was not allowed by the San Luis Obispo Superior Court, showing no res judicata.

        Title 11 United States Code section 502(j) states in relevant part, “A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case.”  (Bankruptcy Rules, rule 9024, 11 U.S.C.) clearly provides that a motion for reconsideration under its subdivision (b) “does not affect the finality of a judgment or suspend its operation.” (Fed. Rules Civ.Proc., rule 60(b), 28 U.S.C., italics added.)  In this case under Federal Bankruptcy Rule 3002.1 the Bankruptcy Court has not made a Judgment or Final Judgment as Union Bank never amended their January 6, 2012 (Proof of Claim) per the April 13, 2012 Conformation Hearing as stated by Hon Judge Riblet in Plaintiffs (Opposition Exhibit # 27). “Are these attorney’s fees post-petition or pre-petition?” “Both.  To the extent they pre-petition, they should go on the claim. To the extent that they are post-petition, they sort of get shunted aside for a while.”

            With Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1299  as noted by the San Luis Obispo Superior Court  “Appellant's First Action Is Not A Complete Bar To His Second Action” Appellant in this case did not have a chance with Federal Bankruptcy Rule 3002.1 as seen in Plaintiff’s Judicially Noticed (Opposition Exhibit # 27) not allowed by the San Luis Obispo Superior Court to plead a case of Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence at the April 13th 2012 Conformation hearing showing no Res Judicata.  Honorable Judge Robin L. Riblet conformed the Bankruptcy plan “without prejudice” on April 13, 2012 as stated in Plaintiff’s Judicially Noticed (Opposition Exhibit # 27)

“Well, assume for present purposes that they are absolutely correct because I am overruling the objection at this point without prejudice.  So you’re suggesting to me the plan is still feasible?”

            Appellant responded to Respondent’s November 24, 2015 reply on November 30, 2015 explaining Federal Bankruptcy Rule 3002.1 left out in Respondent reply to Appellant’s Judicially Noticed (Opposition Exhibit # 27) showing No Res Judicata and that Appellant’s May 18, 2015 complaint was filed within Civil Code section 337.

            Respondent’s December 26, 2011 Rescission falls under similar actions as stated in Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1299.  Similarly, Union Bank’s new charge liability, is a new cause of action. In the parlance of the "primary right theory," those paying charges have a primary right to have the charges properly calculated and imposed each year however Union Bank withheld their December 26, 2011 SBA Loan Rescission Changes with their use of a RESPA Denial and Federal Bankruptcy Rule 3002.1 at the April 13, 2012 Bankruptcy Conformation hearing until June 27, 2013.  Consequently, this complaint attacking Union Bank’s Rescission discovered on June 27, 2013 after the May 23, 2013 RESPA Denial is not based on the same complaint at the April 13, 2012 (BK) Conformation hearing as respondents failed to provide this required information under Federal Bankruptcy Rule 3002.1.  Similarly: "Income taxes are levied on an annual basis. Each year is the origin of a new liability and of a separate cause of action. Thus if a claim of liability or non-liability relating to a particular tax year is litigated, a judgment on the merits is res judicata as to any subsequent proceeding involving the same claim and the same tax year. But if the later proceeding is concerned with a similar or unlike claim relating to a different tax year, the prior judgment acts as collateral estoppel only as to those matters in the second proceeding which were actually presented and determined in the first suit." (Id. at p. 598 [92 L.Ed. at p. 906]; see also, White Mountain Apache Tribe v. Williams (9th Cir. 1984) 810 F.2d 844, 856; Russell v. United States (9th Cir. 1979) 592 F.2d 1069, 1071-1072; California Emp. etc. Com. v. Matcovich (1946) 74 Cal.App.2d 398, 403 [168 P.2d 702]; 7 Witkin, Cal. Procedure, supra, Judgment, section 270, p. 712)

            The doctrine of res judicata precludes parties or their privies from re-litigating issues that have been finally determined by a court of competent jurisdiction. (Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1162). This is not the case as seen in Respondent’s May 23, 2013 RESPA Denial (“RT” Vol. 3 P. 748 Exhibit # 9-7) and Appellant’s Judicially Noticed (Opposition Exhibit # 27).  Three elements must be met for res judicata to adhere: "(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question?  No it was not as Union Bank withheld its December 26, 2011 Rescission from Plaintiff and Hon Judge Riblet with Federal Bankruptcy Rule 3002.1.  (2) Was there a final judgment on the merits?  No, it was not as seen in Plaintiff (Opposition Ex. # 27) and Plaintiff’s (FAC Ex. 10-4 and 9-12) (3) whether the same cause of action and the same parties or their privies were Involved in both cases.   No, as no lawsuit was brought for Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence as Union Bank had not complied with Federal Bankruptcy Rule 3002.1 and was not required to until June 24, 2012 by Hon Judge Riblet.  Yes, as Robert B. Forouzandeh was and is Union Bank’s Attorney at the time.  The federal rule, applicable to matters decided in bankruptcy (Siegel v. Federal Home Loan Mortg. Corp. (9th Cir. 1998) 143 F.3d 525, 529), is that a judgment or order, once rendered, is final for purposes of res judicata until reversed on appeal or modified or set aside in the court of rendition. [Citations.]" (Levy v. Cohen, supra, 19 Cal.3d at p. 172.)

            Honorable Judge Robin L. Riblet made her Bankruptcy Conformation “without Prejudice” under Federal Bankruptcy Rule 3002.1 without having a hearing or deciding on a decision as to what has been pled in the September 4, 2015 (FAC).  Honorable Judge Robin L. Riblet gave no ruling or decision on Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence with Respondent’s December 26, 2011 Rescission withheld by Union Bank until June 27, 2013.  In this case (Siegel v. Federal Home Loan Mortg. Corp. (9th Cir. 1998) 143 F.3d 525, 529) should not be applied, but if it is then, this case should be allowed back into the Bankruptcy court to be heard (“without prejudice”) as stated by Honorable Judge Robin L. Riblet.

Respondent’s January 6, 2012 (Proof of Claim) (“RT” Vol. 3 P. 793 to 794 Ex. 12-1 to 12-2) has never been approved per Appellant’s (Opposition Exhibit # 27) unlike Matter of Baudoin, supra, 981 F.2d at p. 742 [order allowing proof of claim final for res judicata, Honorable Judge Robin L. Riblet stated at the April 13, 2012 Conformation hearing showing that this (Proof of Claim) in question was not approved: “Are these attorney’s fees post-petition or pre-petition?” “Both.  To the extent they pre-petition, they should go on the claim. To the extent that they are post-petition, they sort of get shunted aside for a while.” 

Respondent’s October 9, 2015 (Opposition Exhibit (“RT” Vol. 6 P. 1528 to 1532) shows that the prior (Proof of Claim) was not approved per Federal Bankruptcy Rule 3002.1.  Respondents only claim Pre-Petition Attorney fees of $15,922.92 and not the $57,676.17 in Attorney Fees Post-Petition charged on February 22, 2012 per (FAC Exhibit # 10-4).  The $57,676.17 Attorney Fees from Robert B. Forouzandeh should be tried per the May 18, 2015 Civil Complaint.  Respondent under bankruptcy rule 3002.1 failed to account for 2012 Post-Petition charges of $26,500.00 and $39,750.00 charged on February 21, 2012 which is within Civil Code section 337 and has not been litigated, showing no Res Judicata.

            (In re Mirzai, supra, 271 B.R. at pp. 652-653) Mirzai the creditor's claim was disallowed, whereas here, under Federal Bankruptcy Rule 3002.1 and Honorable Judge Robin L. Riblet's April 13, 2012 Conformation hearing overruled “without prejudice” and no decision; this claim has not been litigated to date, whereas Nathanson's claim was fully litigated before the bankruptcy court on its merits. Hence, the principle of res judicata would not have applied in Mirzai and should not apply in Bookout v. MUFG Union Bank N.A. for an entirely different reason than that relied on by the Mirzai Court. Title 11 United States Code section 502(j) states in relevant part, "A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case . . . ."

            Honorable Judge Barry T. LaBarbera issued his ruling on December 3, 2011 refusing Judicial Notice of Plaintiff October 20th 2015 (Opposition Ex. # 27) under Federal Bankruptcy Rule 3002.1 showing no Res Judicata.  He allowed Respondent on November 24, 2015 to give testimony (“RT” Vol. 6 P. 1594 to 1595 Exhibit # 27).  The Court Acknowledged Respondent’s June 27, 2013 Email Appellant’s (“RT” Vol. 3 P. 746 Ex. 9-5) in his December 3, 2015 decision showing, that the Courts Amortization Schedule accounting prior to May 19, 2011 did not start the 4 year Statute of Limitation under Civil Code section 337 which is an Abuse of Discretion as Defendants Attorney claimed June 27, 2013 in (FAC Ex. 9-5) that their two Amortization Schedules are not actual Bank documents.  This Abuse of Discretion is a misunderstanding in (“RT’ Vol. 6 P. 1629 Paragraph 2) and should be overruled as the Amortization Schedules created by Robert B. Forouzandeh; used in creating the May 19, 2011 Notice of Default where not applicable loan documents as Respondent now States in Appellant (“RT” Vol. 3 P. 746-FAC Ex. 9-5) acknowledged by the Court dated June 27, 2013.  (“Additionally this document will not match the amortization schedules which were previously provided to you, because as I have repeatedly told you, amortization schedules set forth the schedule of future payments on a loan if the terms of the loan are adhered to i.e. they are forward looking.  Amortization schedules do not take into account missed payments, late payments, fees incurred etc.”

            Honorable Judge Barry T. LaBarbera has misunderstood the amortization schedules created by Union Banks Attorney Robert B. Forouzandeh (“RT” Vol. 3 P. 753) January 5, 2015 compared to official loan documents per Union Banks June 27, 2013 email.  This is an Abuse of Discretion.

           Appellant, should have been allowed to do a Second Amended complaint as referenced in Appellant’s (“RT” Vol. 3 P. 883Exhibit 16-39) by Respondent and Appellant’s (“RT” Vol. 4 P. 987 Exhibit # 21-8) argued by Bankruptcy Attorney Richard Rossi, showing Union Bank not complying with Federal Bankruptcy Rule 3002.1. 

            Federal Bankruptcy Rule 3002.1 as explained by Judge Riblet in the Judicially Noticed (Opposition Ex. # 27) Court Transcript and (FAC Ex. 16-39) by Respondent showed the Court that Appellant was not clearly aware of all of the issues he had with Respondent at the time he objected to Respondent’s claim in the bankruptcy proceedings.  Respondent would not provide Appellant an accounting of his SBA Loan as seen in (“RT” Vol. 3 P. 707 to 741Exhibits 8-1 to 8-35) with Respondent’s use of restraining orders (Noted by the Court) stopping Respondent from asking for a Post-Petition and Pre-Petition (Proof of Claim) of Defendants until June 27, 2013.  In a similar case (“RT” Vol. 3 P. 612, 613 and 622) Slick v. Norwest Mortgage, Inc. (2002) Bankr.Lexis 772 (Bankr.S.D.Ala. 2002). “Norwest Mortgage, Inc., n/k/a Wells Fargo, was assessed $2,000,000 in exemplary damages in Slick v. Norwest Mortgage, Inc.60 for charging post petition attorney’s fees to debtors’ accounts without disclosing the fees to anyone.”

            Respondent’s actions fall under Wells Fargo Bank, N.A. v. Jones (5th Cir. 2011) 439 Fed.Appx. 330  as explained in the (“RT” Vol. 2 and 3 Pages 585, 603, 611, 616, 622) showing no Res judicata as explained in Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)”  “Res judicata is not a bar to claims that arise after the initial complaint is filed.  These rights may be asserted in a supplemental pleading, but if such a pleading is not filed a plaintiff is not foreclosed from asserting the rights in a subsequent action. (Yager v. Yager (1936) 7 Cal.2d 213, 217) The general rule that a judgment is conclusive as to matters that could have been litigated "does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation]." (Kettelle v. Kettelle (1930) 110 Cal.App. 310, 312.)”

            Respondent’s misrepresentation, Extrinsic fraud  per Federal Bankruptcy Rule 3002.1 and May 23, 2013 RESPA Denial is similar to (Kettelle v. Kettelle (1930) 110 Cal.App. 310, 312.)” and (Yager v. Yager (1936) 7 Cal.2d 213, 217. ) as Respondent was required to Amend their Proof of Claim as explained in Judicially Noticed (Opposition Ex. # 27) denied by the Court.  (“RT” Vol. 2 P. 569 Paragraph 97) Exhibit 20-1 explains the Bankruptcy Courts ruling “without prejudice”.  The Court failed to acknowledge (“RT” P. 978 Ex. # 20-1) Bankruptcy Conformation hearing ruling “without prejudice”.

“Where the plaintiff is unaware of the facts giving rise to a claim due to defendant's fraud, there is no question of successive litigation by design, the only concern is negligence. A claim should be barred if with diligence it could have been brought earlier. (Himel v. Continental Ill. Nat. Bank & Trust (1979) 596 F.2d 205, 210 [summary judgment based on res judicata reversed where no showing plaintiffs should have known of alleged misconduct of defendant prior to first suit].) But where it cannot be said that plaintiff knew or should have known of the claim when the first action was filed, res judicata should not bar the second action. (Id. at pp. 210-211.)”

            Union Bank’s misrepresentation, RESPA Denial, fraud per Federal Bankruptcy Rule 3002.1 can be explained in:

“Comment j of section 26 of Restatement Second of Judgments provides in pertinent part: "A defendant cannot justly object to being sued on a part or phase of a claim that the plaintiff failed to include in an earlier action because of the defendant's own fraud .... [¶] The result is the same when the defendant was not fraudulent, but by an innocent misrepresentation prevented the plaintiff from including the entire claim in the original action." This rule has been adopted in California. (See Mattson v. City of Costa Mesa, supra, 106 Cal.App.3d at p. 449.)”

            As stated in (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)”  The trial court erred in granting summary judgment. [Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 158]  Union Bank was to amend their January 6, 2012 (Proof of Claim) per Judicially Noticed (Opposition Ex. # 27) denied by the Superior Court from the April 13, 2012 Bankruptcy Conformation hearing.  Under Federal Bankruptcy Rule 3002.1 Respondent withheld Respondent’s December 26, 2011 Rescission from Appellant until June 27, 2013 using a May 23, 2013 RESPA Denial, (FAC Exhibit 9-7) which could not have been litigated until the discovery of (FAC Ex. # 10-4 dated June 25, 2013) as seen in Appellants (FAC Exhibits 9-5) June 27, 2013, acknowledged by the Court that also included Appellant’s (FAC) (Ex. 10-4).  Respondent prevented Appellant from including the entire claim in the original Bankruptcy Conformation Hearing as allowed Under Federal Bankruptcy Rule 3002.1.  The doctrine of res judicata bars claims that have either been litigated or that could have been litigated from being litigated again.  As pled in the November 20, 2015 (“RT” Vol. 6 Opposition P. 1558 lines 12-16).  “―Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud. ― (Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 235 [153 P.2d 325].) fn. 25 [11]  This is seen in (FAC Ex. # 9-5 and 10-4) that Respondent withheld till June 27, 2013 showing no Res Judicata and no final judgment on the merits.  The Bankruptcy Court has not made a Final judgment with the April 13, 2012 Bankruptcy Conformation Hearing conformed “Without Prejudice” (per Opp Ex. # 27).  The Bankruptcy Court could not make a final judgment with Respondent withholding Post-Petition Attorney Fees as stated by Honorable Judge Robin L. Riblet in (Ex. # 27) April 13, 2012 Bankruptcy Conformation hearing:  “Oh yes, you didn’t comply with Bankruptcy Rule 3002.1. Excuse me it hasn’t been 180 days.” The Bankruptcy Court could not make a final judgment with not being informed of Respondent’s December 26, 2011 Rescission per the (FAC) arguments.

            The Trial Court in its Abuse of Discretion ignored as Pled in the (“RT” Vol. 2 P. P. 593, 594, 595 # 2, 3, 4, 5, 6 and 7) Regarding Respondent’s Fraud, Breach of Written Contract, Perjury, Breach of Fiduciary Duty and Negligence.  The Trial Court instead believes that Amortization Schedules created by Attorney Robert B. Forouzandeh are Bank documents????  Appellant Stated before the Court in the (FAC).

“2.  Defendant Union Bank and Union Bank’s Attorney Robert B. Forouzandeh does not deny Union Bank’s Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence with defendants changing Certified SBA loan documents on December 26, 2011 during bankruptcy; without informing Plaintiff, Plaintiffs Bankruptcy Cancel or the United States Bankruptcy Court until June 27, 2013. Code of Civil Procedure section 338(d)-- Code of Civil Procedure section 337(3).”

 

“3.  (“With respect to actions based on fraud, the statute of limitations is tolled when plaintiff is able to show the defendant fraudulently concealed facts which would have led him to discover his potential cause of action. ‘Technical rules as to when a cause of action accrues apply therefore only in those cases which are free from fraud committed by the defendant. Said section 338, subdivision 4, . . . recognizes the non-applicability of those technical rules where the fraud of the defendant may be so concealed that in the absence of circumstances imposing greater diligence on the plaintiff, the cause of action is deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the defendant by concealing his fraud would effectively block recovery by the plaintiff because of the intervention of the statute of limitations.” (Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 127—128 [211 Cal.Rptr. 271], internal citation omitted.)  See (FAC) Exhibit # 10-4 dated June 25, 2013.”

 

“4.  (“Courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule. The rule is generally applicable to confidential or fiduciary relationships. The fiduciary relationship carries a duty of full disclosure, and application of the discovery rule ‘prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.’” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810], internal citations omitted.)“ See (FAC Exhibits 9-5 and 10-4) dated June 25, 2013”

 

“5.  (“The provision tolling operation of [section 338(d)] until discovery of the fraud has long been treated as an exception and, accordingly, has held that if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint.” (Samuels v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701], internal citation omitted.)  Union Bank’s June 25, 2013 Loan Transaction History (FAC Ex. # 10-4) is the Discovery date of the December 26, 2011 Rescission along with) FAC Ex. 9-5).”

 

“6.  The section 338, subdivision (d), three-year statute of limitations applies to an unjust enrichment cause of action based on mistake.” (Federal Deposit Ins. Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38], original italics.)”

 

“7.  On or about December 26, 2011 defendants and each of them changed Certified SBA Loan Documents and provided this information on June 27, 2013.  (The San Luis Obispo Superior Court has established the Rescission as November 23, 2011.)  These representations were false and defendants knew the falsity of these statements at the time they were made. Defendants knew in Defendants October 9, 2015 Demurrer (Exhibit # 6-1 to 6-14) of the Extrinsic fraud they would be doing on December 26, 2011 when defendants purposely changed Certified SBA loan documents.  Under delayed Discovery and Fraud, the Statute of Limitations fall under Code of Civil Procedure section 338(d) and Code of Civil Procedure section337(3).”

The Trial Court in its Abuse of Discretion ignored as Pled in the (“RT” Vol. 3 P. 612, Paragraph # 21), Regarding Respondent’s Fraud, Breach of Written Contract, Perjury, Breach of Fiduciary Duty and Negligence taking $45,171.20 not owed and $57,676.17 in Attorney fees Post-Petition never included in a (Proof of Claim).

“21.  Defendants actions in charging $57,676.17 in Attorney fees fall under. [Tate v. Nationsbanc Mortgage Corporation (In re Tate), 253 B.R. 653 (Bankr. W.D.N.C. 2000)] “As a result, many creditors adopted policies to refrain from including the fees in their claims, while continuing to assess the fees to the debtors’ accounts.  The practice was admonished by an Alabama bankruptcy court that published opinions in a series of cases, prohibiting the assessment of post-petition, pre-confirmation attorneys’ fees to an account without disclosure in the proof of claim or in a fee application.  [Slick v. Norwest Mortgage, Inc. (In re Slick), 280 B.R. 722 (Bankr. S.D. Ala. 2002)]; Dean v. First Union Mortgage Corporation (In re Dean), 281 B.R. 327 (Bankr. S.D. Ala. 2002)]; and Powe v. Chrysler Financial Corporation, L.L.C. (In re Powe), 278 B.R. 539 (Bankr. S. D. Ala. 2002).”

The Trial Court in its Abuse of Discretion ignored as Pled in the (“RT” P. 592 and 593 Paragraph # 166, Regarding Respondent’s Fraud, Breach of Written Contract, Perjury, Breach of Fiduciary Duty and Negligence.

“166.  Defendants actions against Plaintiff and his Creditors (County of San Luis Obispo) involves, situations in which Union Bank has intentionally withheld information from the Plaintiff about relevant transactions and loan changes made by defendant on December 26, 2011.  See (E.g. Klein v. First Edina National Bank (1972) 243 Minn. 418 [196 N.W.2d 619, 622-623, 70 A.L.R.3d 1337]; First National Bank in Lenox v. Brown (Iowa 1970) 181 N.W.2d 178, 182-183; Stewart v. Phoenix Nat. Bank (1937) 49 Ariz. 34 [64 P.2d 101, 106]; Deist v. Wachholz (1984) 208 Mont. 207 [678 P.2d 188, 193-195].)”

The following are additional Bankruptcy Cases regarding Appellants, (FAC Exhibits 1-1, 1-3, 1-4, 5-1, 9-5,10-4, 13, 14-1 and 20-1) (Opposition Exhibit # 27) per Federal Bankruptcy Rule 3002.1 with Respondent’s December 26, 2011 Rescission provided on June 27, 2013 in (FAC Exhibit # 10-4).

In re Ortega 2013 WL 2099726 (Bankr. S.D. Tex. May 14, 2013) – Court held that secured creditor could not recover post-petition fee incurred for preparing FRBP 3002.1 notice where the creditor offered no evidence as to the reasonableness of the fee.

In re Owens 2014 WL 184781 (Bankr. W.D.N.C. Jan 15, 2014) – Court held that any fees assessed post-petition against debtor that are recoverable against the debtor’s principal residence must be noticed via the provisions of FRBP 3002.1.

In re Lighty 513 B.R. 489 (Bankr. D.S.C. 2014) – Lays out 2 part test for analyzing post-petition fees noticed under FRBP 3002.1: 1) is payment of the fee required by the underlying agreement (mortgage) to cure a default by debtor; 2) is payment of the fee required by applicable no bankruptcy law?

In re Hale 2015 WL 1263255 (Bankr. D.S.C. Mar. 16, 2015) – Follows In re Pittman and favorably cites In re Lighty. Creditors must provide adequate descriptions of the fees being sought in their FRBP 3002.1 notices.

  In re Kreider 494 B.R. 201 (Bankr. M.D. Penn. 2013) – Court denied secured creditor’s request to recover post-petition fees under FRBP 3002.1 when the secured creditor failed to timely respond to the trustee’s NOFC. The Court held that, per FRBP 3002.1, the mere filing a notice does not establish the existence of post-petition fees. The creditor must provide evidence of such fees.

In re Fuentes 509 B.R. 832 (Bankr. S.D. Tex. 2014) – Under-secured debtor successfully contested post-petition, pre-confirmation fees creditor sought under its PPFN. Court found that anti-modification provisions of the bankruptcy code didn’t apply until the plan was confirmed.  Therefore, fees incurred pre-confirmation could be successfully contested through FRBP 3002.1 process.

In re Roife 2013 WL 6185025 (Bankr. S.D. Tex. Nov. 26, 2013) – Court further clarified the itemization requirements under FRBP 3002.1: creditors must complete the official form B 10; and 2) include dates late fees and legal fees were incurred. Court reiterated that creditors can’t recover fees for the mere preparation and filing of a FRBP 3002.1 notice.

 Union Bank’s June 25, 2013 Proof of Claim was withheld by Respondent until June 27, 2013 by the use of a May 23, 2013 RESPA Denial, restraining orders and Bankruptcy Rule 3002.1 per (“RT” 1594 to 1595 Opposition Ex. # 27) Testimony by Union Bank making the Civil Court the proper Court As Union Bank changed loan  Documents in June 2013.  Extrinsic fraud is found where fiduciaries have concealed information they have a duty to disclose. (See, e.g., Adams [181 Cal. App. 3d 597] v. Martin (1935) 3 Cal. 2d 246, 248 [44 P.2d 572]; In re Marriage of Brennan (1981) 124 Cal. App. 3d 598, 601 [177 Cal. Rptr. 520]; Morgan v. Asher (1920) 49 Cal. App. 172, 176-179 [193 P. 288].)  Appellant cannot be expected to object to matters not known from Respondent’s December 26, 2011 Rescission because of Union Bank’s concealment of information as a fiduciary that took Respondent’s Attorneys until June 27, 2013 to inform Appellant as seen in (FAC Exhibits 9-5 and 10-4).  Extrinsic Fraud is explained.  In Craney v. Low (1956) 46 Cal. 2d 757 [298 P.2d 860],  As Respondent’s Attorneys put themselves in Charge of Answering SBA loan questions for Union Bank as seen in (“RT” Vol. 3 P. 690 to 705)-statements by Union Banks Attorney Robert B. Forouzandeh.   "The commonest ground for equitable relief is extrinsic fraud, a broad concept which covers a number of situations.  Its essential characteristic is that it has the effect of preventing a fair adversary hearing, the aggrieved party being deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense." 5 Witkin, California Procedure (2d ed. 1971) Attack on Judgment in Trial Court, section 183, page 3752.

Union Bank’s Attorney Robert B. Forouzandeh withholding an amended (Proof of Claim) through restraining orders until June 27, 2013 is known to the Court per the Courts restraining order statements (“RT” Vol.6 P. 1629 to 1632.  FAC Ex. # 10-4).  In Stenderup v. Broadway State Bank (1933) 219 Cal. 593 [28 P.2d 14], defendants withheld requested information, without which the plaintiff was unable to show fraud in accounting. The court held this constituted extrinsic fraud. As said in Caldwell v. Taylor, supra, 218 Cal. 471, at page 479.

The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction." (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810-811 [122 P.2d 892]; see 7 Witkin, Cal. Procedure, supra, section 188, p. 621)  This is not the Case as seen and argued in the (“RT” Vol. 2 P. 541 Paragraph 55 Lines 22 to 27 “RT” P. 542 Line 1 to 3 (“RT” Vol. 3-P. 790 to792 FAC Exhibit # 11-1 to11-3) per Union Bank’s changing Loan Documents in June 2013.

Appellant respectfully requests that the Second Appellate Court make new California Case Law with Union Banks June 25, 2013 Proof of Claim; ignoring Federal Bankruptcy Rule 3002.1 with Robert B. Forouzandeh Post Petition Attorney Fees and Notify the California Attorney General and California State Bar with Appellant Attorney Robert B. Forouzandeh Amortization Schedules he created (“RT” Vol. 6 P.

753) and use of Restraining orders acknowledged by the San Luis Obispo Superior Court throughout in its December 3, 2015 Decision:

VII.  CONCLUSION

          For the foregoing reasons, Appellant respectfully requests that the Second Appellate Court reverse Hon Judge Barry T. LaBarbera’s December 3, 2015 ruling for Judgment on Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty, Negligence, Res Judicata, Adjudication, Statute of Limitations with Respondents Breach of Written Contract, Fraud seen in Union Banks June 27, 2013 (Proof of Claim).   Allowing Appellant to file a Second Amended Complaint; Proceed to Trial or send this case back to the United States Bankruptcy Court with Appellants claimed rescission on November 23, 2011 from Amortization Schedules created by Union Banks Attorneys, Thus showing “No Four Year Statute of Limitation, Res Judicata or Adjudication with Union Banks November 7, 2011 Loan accounting (Proof of Claim) (“RT” Vol. 3 P. 839 to 840 and Union Banks August 29, 2011 Proof of Claim (RT” Vol. 3 P. 662 to 665). 

 

DATED: May    , 2016                                 William A. Bookout, Appellant

 

                                                                        By: ____________________________

                                                                                    William A. Bookout


 

State of California

Court of Appeal

Second Appellate District

CERTIFICATE OF COMPLIANCE

Appellant hereby certifies that pursuant to Rule 8.204(c)(1) of the California Rules of Court, the enclosed brief of William A. Bookout, the appellant, is produced using 13-point Times New Roman and contains approximately 13,798 words, which is less than the total words permitted by the rules of court.  Appellant relies on the word count of the computer program used to prepare this brief.

 

Dated:  May ___, 2016                                Signed:                                                          

                                                                                    By:  William A. Bookout
                                                                                                Appellant, In Pro Per

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