R Scott Turicchi et al vs Randy Quaid et al

Case Number

19CV06268

Case Type

Hearing Date / Time

Mon, 11/25/2024 - 10:00

Nature of Proceedings

Motion: Leave Motion for Leave to File Sixth Amended Cross-Complaint

Tentative Ruling

R. Scott Turicchi, et al., v. Randy Quaid, et al.

Case No.  19CV06268

Hearing Date:         11/25/2024                                                     

HEARING:    Quaid motion for leave to file sixth amended cross-complaint

           

ATTORNEYS:          Craig S. Granet / Claire K. Mitchell of RIMON, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs

                                    Randy Quaid and Evgenia Quaid are in pro per.

                       

TENTATIVE RULING:

The motion for leave to file the sixth amended cross-complaint will be denied. The Quaids are free to structure the pleading as a free-standing new complaint, and apply to the Presiding Judge of the Santa Barbara Superior Court for permission to file it as a new action.

Motion: The Quaids seek leave to file a Sixth Amended Cross-Complaint (6ACC), naming as defendants the Turicchi plaintiffs, as well as Warren Grant and Lynn Nichols.

The motion contends that the Quaids obtained forensic handwriting analysis to show that their signatures on the grant deed and purchase agreement, in which the Mountain Drive property was transferred from them to the Bermans, were forged. They contend that these forged documents were then used by Warren Grant, Equity Title Company escrow officers Lynn Nichols and Janice Poetzman (not named as a putative cross-defendant in the proposed 6ACC) and others to fabricate over 400 escrow documents to transfer ownership of the property to the Bermans. They contend they were never informed of the escrow, never saw any escrow documents, and never authorized the use of their Federal Tax ID Number or Social Security numbers, which were fraudulently used to create the documents. They assert that the fraudulent documents include a fabricated letter from Warren Grant addressed solely to the Quaids, which they never received and which has no legitimate reason to be included in an escrow file. They contend that Grant, Nichols, and Poetzman used their stolen identities to create false correspondence concerning their private financial matters, giving the false impression of a legitimate escrow, rather than a scheme to steal the Quaids’ property.

The motion asserts that the Turicchis improperly obtained these forged escrow documents without a subpoena, and without the Quaids’ knowledge or consent, and are using them to advance their claim against the Quaids. Some of the documents contain social security and tax ID numbers, which the motion contends violates the Quaids’ privacy rights. It contends the Turicchis have also unlawfully obtained the Warren Grant letter, and improperly submitted it into the court record, which constitutes mail theft and a violation of the Quaids’ privacy rights.

The Quaids therefore seek leave to file the Sixth Amended Cross-Complaint, which they attached to the motion.

Supporting declarations The motion includes two separate joint declarations by the Quaids, in which they contend that the Turicchis unlawfully obtained the fraudulent escrow documents without a subpoena or their knowledge and content. They believe the documents were provided by former Equity Title officer Lynn Nichols, but state that the Turicchis refuse to identify the specific individual who gave them the documents. They have determined the documents to be “fraudulent and void and stolen.” They present an email from Craig Granet stating that Equity Title gave him the documents, an email from a person named Macey A. Chan, Litigate Counsel with Title Resources Guaranty Company, who states her office has not provided any documents to Mr. Granet, and deposition testimony of Evi Quaid.

Proposed pleading It purports to state causes of action for (1) Identity Theft pursuant to Penal Code section 530.5 and Civil Code (erroneously alleged as the Code of Civil Procedure) section 1798.93; (2) fraud; (3) violation of the Quaids’ privacy rights; and (4) mail fraud and unlawful use of computer systems.

The factual allegations underlying the claims include contentions that the Turicchis have stolen the Quaids’ personal and financial information, and have used that information in “fabricated” escrow documents they unlawfully obtained in order to advance their claim against the Quaids. The Turicchis unlawfully obtained the escrow documents without a subpoena or the Quaids’ consent, and transmitted them to Warren Grant, along with a stolen personal letter addressed to the Quaids from Mr. Grant. Equity Title, which oversaw the escrow process, has denied providing the documents to the Turicchis. The 6ACC attaches the Granet email stating that Equity gave him the documents, and an email the Quaids contends confirms that Equity never provided Granet with any documents.

The 6ACC reiterates the contention that the Bermans forged the original transfer documents in 1991, contending that the Turicchis have never attempted to disprove the expert’s report which “conclusively” established the Quaids’ signatures on the documents were inauthentic. They have continued to rely on the fraudulent documents to support their claims, although since they were void ab initio they cannot support any claim of superior title. The Quaids have never received the “stolen, fabricated Warren Grant letter” in 1992, but the Turicchis have obtained it and continue to retain it. The Quaids were never contacted by Equity Title Company escrow officers Lynn Nichols or Janice Poetzman, who were involved in the fraudulent escrow, nor by any other Equity Title employee. The Quaids had no contact with any real estate agents regarding the property. However, two real estate agents claim to have handled both sides of the transaction without securing a sign ed dual agency waiver, a transaction in which Lynn Nicols played a role. When deposed, she and Poetzman will likely confirm they never communicated with the Quaids.

The Identity theft cause of action alleges that the Quaids’ personal identifying information, including their social security numbers, federal tax ID number, and signatures, were stolen and used without their consent to fraudulently transfer the Montecito property. The theft is ongoing, since the Turicchis continue to use the fraudulent documents in support of their claim. The Quaids first discovered the Turicchis’ unlawful possession of the documents on November 8, 2023, when they were transmitted to the Quaids’ attorney. By relying on stolen, forged documents containing the Quaids’ private information, the Turicchis violation Section 1798.93, and their continuing use of the documents causes ongoing harm to the Quaids and makes this action timely.

The fraud cause of action alleges that the Quaids have suffered significant damage due to the fraudulent actions of the Turicchis, who knowingly relied on forged documents, including the deed and purchase agreement, to pursue their claim of ownership over the Quaids’ Montecito property. The “fraudulent documents” were unlawfully obtained by the Turicchis without a subpoena despite the availability of Mr. Cobb’s forensic evidence proving that the Quaids’ signatures are forged and void, demonstrating intentional and fraudulent misrepresentation perpetrated by the Turicchis. The Quaids have suffered damages, including legal costs, reputational harm, and continued invasion of their privacy through unlawful use of their stolen identities.

The violation of privacy rights cause of action alleges that the unauthorized acquisition, use, and dissemination of the Quaids’ private and financial records by the Turicchis and whoever provided the records, constitutes a direct violation of the Quaids’ right to privacy under the California Constitution. By obtaining the documents without a valid subpoena and using them in this litigation, the Turicchis have exposed the Quaids’ private information to public scrutiny and shared it with third parties, violating the Quaids’ right to privacy. The presence of “ET” Bate stamps on the documents compound the violations of the Quaids’ privacy, by giving the appearance of legitimacy, although they were not produced lawfully by Equity Title.

The cause of action for mail fraud and unlawful use of computer systems alleges that the Turicchis unlawfully transmitted the stolen and forged documents, including the escrow documents and Warren Grant’s letter, via electronic means to the Quaids’ attorney and possibly other parties on November 8, 2023, in violation of 18 U.S.C. § 1341 (mail fraud) and “CPC” § 502(c)(1)(2) (unlawful use of a computer system). The transmission of the unlawfully obtained documents is an ongoing violation of the Quaids’ privacy rights and exacerbates the harm caused by the identity theft and fraud. The presence of the Bate stamps creates the appearance of legitimacy, but reflect the unlawful use of computer systems to disseminate stolen information; use of the stamps was part of the ongoing fraud and identity theft. The Quaids are entitled to seek damages and other remedies, including the suppression of the documents as evidence in this litigation.

Opposition: The Turicchis have opposed the motion, noting it is the second attempt in the last three months to file a 6ACC for identity theft, the first having been related to the letter to them from Warren Grant. Their current claim is more preposterous, because the not only claim again that the Grant letter was obtained by identity theft, but also claim that identity theft is the only explanation for the Turicchis’ possession of the escrow documents from Equity Title—but that possession has nothing to do with identity theft.

They presented an email from a Macey Chan at a company known as Title Resources Guaranty Company in which Ms. Chan states she did not provide documents to Mr. Granet. The motion never explains how Title Resources Guaranty Company had any transactions at issue. Rather, the attached declaration of Matthew D. Fox fully explains the Equity Title documents.

Mr. Fox is Litigation and Compliance Counsel for Anywhere Integrated Services LLC (AIS), formerly known as Realogy Title Group, LLC. Equity Title Company is a wholly-owned subsidiary of AIS. Mr. Fox explains that prior to June 14, 2022, based upon a complaint made by the Quaids, the California Department of Insurance conducted an investigation regarding the 1992 sale of the property at issue by the Quaids to the Bermans, and Equity Title was the title company for the transaction. The Department of Insurance concluded that there was “no basis” for the Quaids’ complaint, and the case was closed with a finding of “no violation.” In connection with that investigation, the California Department of Insurance requested that Equity Title Company produce its entire file regarding the 1992 transaction, which it did on march 6, 2014. The file was Bates-stamped as ET00001-00432. Prior to June 14, 2022, Mr. Fox had communications by phone and email with Evi Quaid about the Equity Title Company file, in response to which he provided a copy of the file to her, upon her request. He had a conversation with Mr. Granet on the same date, and at Mr. Granet’s request also provided a copy of the file to Mr. Granet. On June 15, 2022, Mr. Fox sent an email to Mr. Granet confirming the conversation and attaching the complete Equity Title Company file with the email.

As a result, there is no mystery how the Turicchis obtained the file, and it was not the result of identity theft.

On September 13, 2023, the Court entered a prefiling order declaring the Quaids to be vexatious litigants (copy of order attached to Granet declaration). The opposition contends the proposed 6ACC is another example of why the order was required.

The 6ACC is a permissive cross-complaint, not a compulsory one, since the facts supporting it were not known at the time the Quaids filed their answer. Indeed, their motion claims they only learned of the escrow documents on November 8, 2023, when the documents were transmitted to their then-attorney. As a result, the court has broad discretion in determining whether to permit its filing. Trial is only 2 months away, and trial has been continued several times because of the court’s calendar. The continuance was not a reason to permit the filing of a cross-complaint at such a late date.

Were the Quaids permitted to file the 6ACC, the Turicchis would demur to it since it does not state a cause of action; that the cross-complaint would be vulnerable to a general demurrer on the ground that it did not state a cause of action is a ground to deny leave for it to be filed. The demurrer would require yet another unjustified continuance of the trial date.

The opposition further asserts that the reasons why the court denied the previous motion for leave to file a 6ACC are equally applicable to this motion, and proceeds to quote from the denial of that motion.

The opposition is supported by the declaration of Matthew D. Fox, setting forth the information attributed to him in the body of the opposition. It is also supported by the declaration of Craig Granet, which authenticated a copy of the Prefiling Order—Vexatious Litigant, entered against the Quaids on September 13, 2023, and a copy of the court’s ruling in a related case granting the Sheriff’s Department’s motion to quash a subpoena issued by the Quaids on the grounds of the doctrine of fugitive disentitlement.

The opposition is also supported by a request for judicial notice of the April 3, 2014 Investigation Closing Report of the California Department of Insurance, which found no basis for the complaint made by Evi Quaid that the transfer of the Mountain Drive property to the Bermans was fraudulent.

Reply: The Quaids filed lengthy reply papers, which begins with the following statement:

“It matters little that Craig granet and Turicchi have committed now more crimes in their opposition against the Quaids for ID theft to this court or FNT because FNT will say or do any corrupt thing they can think for themselves to steel the Quaids house and hide the truth of their liability. And this court cares little because FNT has most of the lawyers and some judges in Santa Barbara on retainer.”

[The Court notes that the reply never identifies what “FNT” refers to, although it is assumed to refer to non-party Fidelity National Title.]

The reply proceeds to contend that the fact that attorney Granet has “acquired or commissioned” more fabricated documents showing their identities are being stolen by the Turicchis and FNT and its counsel is no surprise because FNT will do anything and has committed crimes to hide their fraud and negligence. It contends that Janice Poetzman (referred to in the 6ACC, but not made a cross-defendant therein) is also known as Janice Dyer and Owen, is the person who fabricated the documents, and is “a woman who has fabricated identities to make money of [sic] suckers was in fact head of the escrow department at FNT.”

The reply states that the Quaids are not going to stand for the fraud and ID theft. They contend that Poetzman/Dyer/Owen, who fabricated the documents, is mentally ill or a sociopath, who lives in a haunted house where she lies to the public about 14 ghosts identities she fabricated for money. The reply then quotes from a source unknown to this Court, appearing to relay a story about Janice and ghosts on a Missouri farm.

The reply purports to set forth something indicating that the San Diego County Recorder found no record of a notary journal submitted for Rory Freed. The reply does not explain who Rory Freed is, or how he or she is connected to this case in any way. It purports to attach additional documents related to Janice Owen Poetzman Dyer, and makes claims about no notary book and Janice working for Fidelity under all three names, the import of which is not made clear by the reply.

The attached declaration of Evi Quaid contends that Janice Poetzman admitted to fabricating the documents for an escrow the Quaids had nothing to do with.

In an unsworn addition to the reply document, the Quaids assert that there is no signature on any of the documents from Equity Title. It contends the Cobb forensic report on the grant deed and purchase and sale agreement “invalidates each and every one of these documents as void and fraudulent,” apparently referring to the escrow documents. It contends that Equity Title has informed the Quaids they did not provide the documents, because it would have been illegal and against its policy to do so, and no one was allowed to remove the documents from their premises. They believe Janice Poetzman or Lynn Nichols provided the documents to the Turicchis. They conclude by contending their claims are very serious, vast and undeniable.

ANALYSIS:  For the reasons set forth below, the Court will deny the motion for leave to file the 6ACC.

As of the date of this hearing, this action was filed exactly five years ago. Because of the emergency rule issued by the California Supreme Court as a result of the pandemic, the 5-year period to bring the action to trial was extended by 6 months, and will expire in late June, 2025. The Trial Confirmation Conference in this case has been scheduled and continued multiple times, with several continuances resulting from the court’s congested trial calendar. The Trial Confirmation Conference is currently scheduled for January 27, 2025, and it is this Court’s intent to commence the trial immediately thereafter.

In their long-since-superseded 2022 First Amended Cross-Complaint, the Quaids alleged a cause of action for identity theft, based upon the allegedly forged grant deed which transferred the Montecito property from the Quaids to the Bermans. The Court sustained the Turicchis’ demurrer to that cause of action, without leave to amend, on the ground that the Quaids’ prior cross-complaint filed in 2020 had made judicial admissions that they had knowledge in 2010 of the facts related to the alleged identity theft which they claimed resulted in the transfer of the property to the Bermans, and the four-year statute of limitations on that claim had long expired. (The Court will incorporate by reference its November 28, 2022 Minute Order, which fully explained the reasons for the Court’s ruling.) At that time, the claim of identity theft resulting in the transfer of the property arose from the claimed forged grant deed and purchase contract.

Last August, this Court denied a motion by the Quaids for leave to file a different proposed 6ACC, in which they also sought to allege claims for identity theft and mail fraud, and sought a multitude of remedies against the Turicchis. That proposed 6ACC related to the claim that the Turicchis had stolen a letter addressed to them from their former business manager, Warren Grant, dated December 6, 1991, which they claimed they had never seen. In denying the motion, court found that the subject matter of that proposed 6ACC had no relevance to the sole remaining claim in this action, i.e., whether the Quaids have liability for disparaging the Turicchis’ title to the mountain Drive property. It noted that the introduction of unrelated issues would require a round of pleading challenges, noting further that the claims suffered from logical inconsistencies, which would require another continuance of the trial. Because the 6ACC was a permissive cross-complaint, and not a compulsory one, the Court had wide discretion in determining whether to permit its filing at that late date. Because of all those facts, the Court denied the motion, but noted that although the Quaids were subject to a Pre-Filing Order as vexatious litigants, they were free to structure their pleading as a separate complaint, and submit it to the Presiding Judge with a request to permit it to be filed.

The Court has no information on whether they did so. However, they filed the current motion for leave to file yet another proposed 6ACC the following month. While the original identity theft cause of action had been based upon the allegedly forged 1991 deed of trust and purchase agreement which effectuated the transfer of ownership of and title to the Montecito Property from the Quaids to the Bermans, and the second identity theft cause of action proffered by the Quaids in mid 2024 was based upon the 1991 letter from Warren Grant to the Quaids related to the transfer of the property from the Quaids to the Bermans in 1991, the current proposed 6ACC relates to the allegedly forged escrow documents which were used in conjunction with the 1991 transfer of the Montecito property from the Quaids to the Bermans. Given this Court’s previous findings that the Quaids’ prior pleadings expressly alleged that they had knowledge of the facts supporting the theft of their identities in order to effectuate the transfer of the Montecito Property from them to the Bermans as early as 2010, it is difficult for this Court to envision any way in which the current identity theft cause of action related to documents that were a part of the identical transaction and used for the identical purpose, could possibly survive a statute of limitations challenge.

Certainly, the identity theft claim would be subject to demurrer not only on statute of limitations grounds, but also based upon the very definition of a “victim of identity theft,” set forth in Civil Code section 1798.92(d), and applicable to all claims for identity theft, which on its face does not appear to apply to the allegations of the currently-proposed 6ACC.

The mere fact that documents exist which contain “personal identifying information,” as that term is defined in Section 1798.92(c), and have come into the possession through some means of a person other than that individual to which the personal identifying information applies, is wholly insufficient to constitute a claim for identity theft. There are countless reasons why such documents might exist and come to have been possessed by another individual, in the context of litigation. Documents containing such information are sought by and compelled to be turned over by litigants on a daily basis in litigation proceedings. The fact that the information might be protected by a right to privacy also does not absolutely preclude their discovery or disclosure in litigation (see, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, and Lewis v. Superior Court (2017) 3 Cal.5th 561), although it can lead to the imposition of a protective order that the documents and information disclosed outside of or used for any purpose other than within the litigation. Further, California law already requires that full social security numbers and financial account numbers be redacted from all pleadings and other papers placed in the court’s public file, permitting only the last four digits of each such number to be publicly identified. (Cal. Rules of Court, Rule 1.201, subd. (a).) Consequently, while caution is used with such personal information, that a person has sought or been provided with another individual’s “personal identifying information” in the context of ongoing litigation does not normally give rise to any claim for theft of the information, for violation of the right to privacy, or any other similar claim.

Should the Turicchis attempt to introduce the subject escrow documents at trial in support of some aspect of their claim that the Quaids committed slander of the Turicchis’ title to the Montecito property, the Quaids are free to challenge the use of those documents in any appropriate manner, including presenting evidence to support their contention that the escrow documents were also forged documents. Should the documents be used at trial in any respect, the Court will make appropriate orders to ensure that any of the Quaids’ private identifying or financial information which appears on the face of those documents is protected.

Further, while this Court will assume that Mr. Granet, as an officer of the court, is already fully aware of his obligations to protect the Quaids’ private information contained in or reflected on any of the documents or other information he has acquired in the course of this litigation, it will remind him at this time of those obligations, and will instruct him to continue to protect such information from public disclosure, or any disclosure outside of the context of this litigation.

The manner in which Mr. Granet acquired the Equity Title escrow documents is hotly disputed, but largely irrelevant. The Quaids contend that Mr. Granet either “commissioned” or acquired the documents from Equity Title illegally, and that Equity Title has denied providing the documents to Mr. Granet. However, the unsworn communication they proffered in support of the contention that Equity Title did not provide the documents to Mr. Granet does not reflect that the identified person has any relationship with Equity Title. The Turicchis, on the other hand, have submitted the declaration of Matthew D. Fox, the current Litigation and Compliance Counsel for Anywhere Integrated Services LLC (AIS), formerly known as Realogy Title Group LLC, noting that Equity Title Company is a wholly owned subsidiary of AIS. He has declared that Equity Title provided the escrow documents to the California Department of Insurance in 2014, for their use in investigating a complaint Evi Quaid made to that department with respect to the subject property. He declared further that he had direct communications with Evi Quaid prior to June 14, 2022, via both telephone and email, wherein she requested that she be provided with a copy of the escrow documents, and that the documents were then provided to her. On that same date, he communicated with Mr. Granet, advising him that Equity Title had provided its complete file to Evi Quaid and, in response to a request by Mr. Granet, also provided him with a copy of the file the next day via confirming email. The Court notes that the Quaid reply never refutes, nor does it ever refer or respond to, Mr. Fox’s sworn declaration testimony that he had spoken with Mrs. Quaid and provided the escrow documents both to her and to Mr. Granet in mid-2022.

To the extent that the Quaids’ proposed 6ACC contains any viable claims, they are at best of tangential relevance to the sole remaining claim for slander of title. Given that the Quaids were not aware of them at the time they filed their answer, the cross-complaint is a permissive, rather than compulsory, cross-complaint (Code Civ. Proc., § 426.30, subd. (a); Crocker National Bank v. Emerald (1990) 221 Cal.App.3d 852, 864), over which the Court has wide discretion in determining whether to permit its filing. The facts that discovery has long been closed, this action is going to trial in 2 months, and is running up against the time limit within which the action must be tried, also are of great weight in the Court’s analysis of whether to permit the 6ACC to be filed. Further, as noted above, to the extent that the documents at issue reflect any personal information of the Quaids, that information will be appropriately protected from public view in this litigation.

For all of these reasons, the Court will deny the motion for leave to file the proposed 6ACC. Once again, however, the Quaids are free to restructure the pleading as a free-standing complaint, and request the Presiding Judge for permission to file it as a separate action.