Debbie Thompson v. Select Portfolio Servicing, Inc. et al.

At issue are three matters filed by defendants SPS and U.S. Bank (hereafter, Defendants): (1) a demurrer to the complaint; (2) a motion to strike portions of the complaint; and (3) a motion to have Plaintiff declared a vexatious litigant. Plaintiff filed a single opposition addressing all three matters. The court will sustain the demurrer without leave to amend, deny the motion to strike as moot, and grant the motion to declare Plaintiff a vexatious litigant.

REQUEST FOR JUDICIAL NOTICE

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307.) Evidence Code section 453, subdivision (b), requires a party seeking notice to “[furnish] the court with sufficient information to enable it to take judicial notice of the matter.”

Defendants request judicial notice of 36 documents, citing Evidence Code section 452, subdivisions (c), (d), and (h). The court has considered the request filed with Defendants’ moving papers on January 6, 2026, and has not considered the request filed on January 15. Evidence Code section 452, subdivision (h), does not apply to any of the submitted material. (Gould v. Md. Sound Indus. (1995) 31 Cal.App.4th 1137, 1145 [“Judicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.”].)

The court grants judicial notice of exhibits 1 through 18 (copies of recorded documents). (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924; Evid. Code, § 452, subd. (c).)

The court grants judicial notice of exhibits 19 through 36 (copies of court records). (Evid. Code, § 452, subd. (d).) Court orders may be judicially noticed as to their findings. Judicial notice of other court records is appropriate for the fact of their filing, but not as to the

truth of matters stated therein. (Oh v. Teachers Ins. & Annuity Assn. of America (2020) 53 Cal.App.5th 71, 79-81 [truth of contents of court records cannot be judicially noticed].)

The contents of court records can be considered regarding application of res judicata. “As a general rule factual findings in a judgment are not the proper subject of judicial notice. That does not end our inquiry. ‘ “Whether a factual finding is true is a different question than whether the truth of that factual finding may or may not be subsequently litigated a second time. The doctrines of res judicata and collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided in favor of a party who did not testify truthfully.” [Citation.]

In other words, even though a factual finding in a prior judicial decision may not establish the truth of that fact for purposes of judicial notice, the finding itself may be a proper subject of judicial notice if it has a res judicata or collateral estoppel effect in a subsequent action.’ ” (Hawkins v. SunTrust Bank (2016) 246 Cal.App.4th 1387, 1393, quoting Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148.)

DEFENDANTS’ DEMURRER

Demurrer Legal Standard

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations but does not accept as true contentions, deductions or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Code of Civil Procedure section 430.60 states that “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” The California Rules of Court also require that the demurrer itself (distinct from a supporting memorandum) specify the target of any objection and the grounds. (See Cal.

Rules of Court, rules 3.1103(c), 3.1112(a), 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”].)

The court cannot consider extrinsic evidence when ruling on a demurrer or a motion to strike. That includes declarations. The court has considered the declaration from defense counsel in support of the demurrer only to the extent it discusses the meet and confer efforts required by statute. The court has not considered any portion of the declaration filed by Plaintiff in connection with the demurrer or motion to strike. The court has also not considered any of the exhibits attached to the opposition while considering the demurrer because those exhibits constitute extrinsic evidence.

Finally, “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273.) The court has not considered Plaintiff’s objection to the reply papers because it was filed without leave of court.

Res Judicata Bars Plaintiff’s Action

Defendants demur to the entire complaint and each cause of action on several grounds: res judicata, lack of standing, and failure to state sufficient facts. (Notice of Demurer and Demurrer at pp. 2:12-3:27.)

A general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that a plaintiff’s claim is barred by res judicata (also called claim preclusion) or collateral estoppel (also called issue preclusion). (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792.) Res judicata and collateral estoppel have different requirements. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-824 (DKN).) Res judicata prevents relitigation of the same cause of action in a second suit between the same parties (or parties in privity with them).

It arises if a second suit involves: (1) the same cause of action, (2) between the same parties (or parties in privity), (3) after a final judgment on the merits in the first suit. (Id. at p. 824.) Collateral estoppel bars relitigation of issues that were argued and decided in the first suit, not entire causes of action. (Ibid.) Collateral estoppel applies: (1) after final adjudication, (2) of an identical issue, (3) actually litigated and necessarily decided in the first suit, (4) asserted against one who was a party in the first suit or one in privity with that party. (Id. at p. 825.)

Where res judicata applies, it bars a party from splitting causes of action or relitigating the same primary right. A claim raised in a later lawsuit is based on the same cause of action as a prior lawsuit if they are premised on the same primary right. A plaintiff’s primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. (Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914 (Gillies).) In a similar factual context of a litigant who filed multiple unsuccessful lawsuits to prevent a foreclosure, the Gillies court observed: “It matters not that appellant has a new theory of wrongful foreclosure. It is the same primary right which appellant has always claimed.” (Ibid.)

Plaintiff has previously litigated (on several occasions) the primary right that is the basis for all causes of action in the current complaint: the right to be free from foreclosure of the subject property. Plaintiff filed a lawsuit in this court attempting to prevent the foreclosure of the subject property in 2016, naming as defendants U.S. Bank and others (case No. 16CV299641, Thompson v. JP Morgan Chase Bank, N.A., et al.). (See ex. 20 to Defendants’ RJN [copy of the complaint].) That lawsuit was removed to federal court and dismissed in 2017.

The federal court (Judge Freeman) found that Plaintiff had defaulted on her loan in 2010, but that no foreclosure had yet taken place, and that “[r]egardless of the cause of action Thompson is attempting to assert in the complaint, the complaint fails as a matter of law because a preemptive suit to enjoin a foreclosure, such as the one here, is not permitted.” (See ex. 21 to Defendants’ RJN at p. 5:22-24.) The court found that “Defendants obtained the right to enforce the [deed of trust] when Chase acquired WaMu’s assets and directed U.S.

Bank, N.A., to act as a trustee.” (Id. at p. 8:14-15.) The court further found that U.S. Bank “has the right to foreclose on the underlying property,” and that Plaintiff admitted that “her loan has been in default since January 2010.” (Id. at p. 11:6-8 & 21.) The complaint was dismissed with prejudice and without leave to amend.

Plaintiff brought a second lawsuit in this court in 2020 attempting to preemptively challenge the power to foreclose on the subject property (case No. 20CV363544, Thompson v. WAMU Mortgage Pass Through Certificates Series 2006-AR9 Trust, et al.). (See ex. 23 to Defendants’ RJN.) That action was also removed to federal court. The federal court denied Plaintiff’s motion for remand and granted the defendants’ motion to dismiss the lawsuit without leave to amend. The court found that the lawsuit was barred by res judicata based on the outcome of the 2016 lawsuit. “The claims raised in the Complaint are the same as those in the 2016 lawsuit before Judge Freeman.” (Ex. 25 to Defendants’ RJN at p. 11:4-5.) The court 8

also found that “while Defendants were not named parties in the 2016 lawsuit, the allegations asserted against Defendants are the same and Defendants have the same interest in the [deed of trust]. Thus, Defendants are in privity with the 2016 Defendants.” (Id. at p. 11:22-23.)

Plaintiff filed a third action in this court in 2025, naming as defendants U.S. Bank and others, and alleging wrongful foreclosure and other claims (case No. 25CV467520, Thompson v. US Bank et al.). (See ex. 33 to Defendants’ RJN.) That complaint again alleged that U.S. Bank lacked capacity to foreclose. (Ex. 33 at ¶¶ 2, 7, 32.) The June 2025 complaint alleged that a 1099A form identified SPS as a “Lender.” (Id. at ¶ 29.) The court (Judge Pennypacker) sustained a demurrer to the complaint without leave to amend in October 2025, finding the action was barred both by the applicable statutes of limitations and by res judicata. (See ex. 34 to Defendants’ RJN.)

The court found that all causes of action accrued by no later than March 2022 because a statute of limitations is triggered by constructive notice, recorded documents provided constructive notice, and a trustee’s deed upon sale had been recorded in March 2022. (See ex. 34 at pp. 8-9.) The court also found that judicially noticed court filings established that “Plaintiff previously litigated U.S. Bank’s authority to enforce the Deed of Trust and the validity of the Assignments. In each instance, the Superior Court cases were removed to the Federal Court where the court dismissed Plaintiff’s complaint after finding Plaintiff’s allegations could not support a cause of action.

Plaintiff contends res judicata is not applicable because the previous litigations were presale. The Court is not persuaded. Plaintiff is still trying to litigate the primary right as to her injury related to Defendant’s actions in connection with her 2006 mortgage with WAMU, the associated Deed of Trust, and Assignments. It matters not that Plaintiff now has new theories or that Defendant took additional steps to enforce the Deed of Trust. It is the same primary right which Plaintiff has always claimed in previous litigations.” (Id. at pp. 11-12, internal citations omitted.)

Plaintiff moved for reconsideration of that demurrer ruling, which was denied by Judge Pennypacker in November 2025. (See ex. 36 to Defendants’ RJN.) The order denying that motion noted that at the hearing, “Plaintiff had a copy of an amended complaint that she urged she be permitted to file as part of her motion for reconsideration. As the court explained during the hearing and explained in its order sustaining the demurrer without leave to amend, under the law, there is no way for Plaintiff to amend the complaint to avoid res judicata because she is ultimately seeking exactly the same relief based on exactly the same primary right.” (Ex. 36 to Defendants’ RJN at p. 3.)

The current lawsuit was filed shortly after Judge Pennypacker denied the reconsideration motion. The current complaint once again alleges U.S. Bank lacked authority to foreclose on the subject property. (Complaint, ¶¶ 8, 14, 20.) This action is another attempt to assert the same primary right that Plaintiff has unsuccessfully asserted several times before. Res judicata bars all causes of action in this case as alleged against U.S. Bank because it was a party to prior cases. That Plaintiff purports to have made new discoveries and wishes to assert new theories is irrelevant to the res judicata finding. “It matters not that appellant has a new theory of wrongful foreclosure. It is the same primary right which appellant has always claimed.” (Gillies, supra, 7 Cal.App.5th at 914.)

The court also finds that res judicata bars all causes of action in this action as alleged against SPS, the successor loan servicer, because it is in privity with U.S. Bank. “Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is ‘directly interested in 9

the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment.’ [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.” (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 811.) The court finds the federal decisions cited by Defendants persuasive authority for the proposition that for purposes of res judicata, successor servicers and trustees are in privity with lenders who were parties in previous lawsuits. (See Janeece Fields v. Bank of New York Mellon (N.D. Cal. May 1, 2017) 2017 U.S. Dist. LEXIS 66202, at *3; Sepehry- Fard v. Select Portfolio Servicing, Inc. (N.D. Cal. March 10, 2015) 2015 U.S. Dist. LEXIS 29989, at *15.)

The demurrer is sustained. A plaintiff bears the burden of demonstrating that a defect identified on demurrer could be cured through amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145.) Plaintiff cannot meet that burden because all of her claims against U.S. Bank and SPS are barred by res judicata. Plaintiff’s request to file a sur-reply, apparently in connection with all three matters, is denied. Because no potentially effective amendment is reasonably possible, leave to amend is denied. (Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, 408.) “ ‘Somewhere along the line, litigation must cease.’ ” (Gillies, supra, 7 Cal.App.5th at p. 914.)

Because the demurrer to the entire complaint based on res judicata is sustained without leave to amend, the court does not reach the parties’ arguments related to the other stated grounds for the demurrer.

DEFENDANTS’ MOTION TO STRIKE

Defendants move to strike specified portions of the complaint referring to punitive damages, emotional distress, attorney fees, and credit damage. (Notice of Motion to Strike and Motion at pp. 2:10-3:10.) Defendants’ motion to strike is denied as moot in light of the court’s ruling sustaining the demurrer to the entire complaint without leave to amend.

VEXATIOUS LITIGANT MOTION

Vexatious Litigant Motion Legal Standard

Code of Civil Procedure section 391, subdivision (b), defines a vexatious litigant as “a person who does any of the following”:

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law,

determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

(5) After being restrained pursuant to a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 of the Family Code, and while the restraining order is still in place, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be meritless and caused the person protected by the order to be harassed or intimidated.

(Code Civ. Proc., § 391; subd. (b); unspecified statutory references are to the Code of Civil Procedure.)

Litigation is defined broadly to include “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (§ 391, subd. (a).) Litigation “includes an appeal or civil writ proceeding filed in an appellate court.” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406-407.) “A litigation is finally determined adversely to a plaintiff if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff.” (Ibid.)

Before a person can be declared a vexatious litigant, the person is “entitled to a noticed motion, and a hearing which includes the right to oral argument and the presentation of evidence.” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225; § 391.2.) “When considering a motion to declare a litigant vexatious, the court must weigh the evidence to decide whether the litigant is vexatious based on the statutory criteria and whether the litigant has a reasonable probability of prevailing. [Citation.] To be declared a vexatious litigant, the plaintiff must come within one of the definitions of section 391, subdivision (b).” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265 (Goodrich).)

If the “court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.” (§ 391.3, subd. (a).) The security is “an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.” (§ 391, subd. (c).)

Once a motion declaring a plaintiff a vexatious litigant is granted, the litigation is stayed and the moving defendant need not plead “until 10 days after the required security has been furnished and the moving defendant given written notice thereof.” (§ 391.6.) “When security

that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.” (§ 391.4.)

“In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.” (§ 391.7, subd. (a).)

Plaintiff is a Vexatious Litigant

Defendants move to have Plaintiff declared a vexatious litigant under section 391, subdivision (b)(2). They ask the court to order Plaintiff to post a security in the amount of $29,104.90 as a condition of continuing this action; and to enter a prefiling order preventing Plaintiff from filing any new litigation without prior leave of court. (Notice of Motion and Motion at p. 2:16-20.)

The record in this case, including the judicially noticed records from prior state and federal cases involving Plaintiff, supports a determination that Plaintiff is a vexatious litigant. As already discussed in the demurrer analysis, this is the fourth lawsuit brought by Plaintiff as a self-represented litigant attempting to litigate the issue of whether U.S. Bank and others had the right to foreclose on, and/or have wrongfully foreclosed on, the subject property. (See exs. 21, 25 and 34 to Defendants’ RJN.)

In addition to those three prior lawsuits, Plaintiff has also attempted to litigate issues related to the subject property in bankruptcy proceedings. (See exs. 28-31 to Defendants’ RJN.) The federal bankruptcy court in a chapter 13 bankruptcy case granted a motion by the chapter 13 Trustee to dismiss Plaintiff’s case in April 2021. The court found: “It is clear from the record and Debtor’s own filings that the sole purpose of this case, as well as previous cases, is to delay foreclosure and/or litigate with U.S.

Bank and B&B [Funding LLC]. . . . Debtor has filed eight bankruptcy cases since 2010, around the time she defaulted on her senior mortgage. All were dismissed.” (Ex. 31 at pp. 6:15-7:12.)

The foregoing evidence supports a finding that Plaintiff is a vexatious litigant under section 391, subdivision (b)(2). (See Goodrich, supra, 246 Cal.App.4th at 1266-1268 [finding under section 391, subdivision (b)(2) upheld based on the filing of three motions].) The evidence offered by Plaintiff, her own declaration and attached exhibits, fails to outweigh the evidence submitted by Defendants.

Defendants’ motion is granted. Plaintiff is a vexatious litigant under section 391, subdivision (b)(2). The court further finds, based on its demurrer ruling, that Plaintiff cannot show a probability of prevailing in this lawsuit. Defendants are entitled to an order requiring Plaintiff to furnish a security under section 391.3 before she may take further action in this case. Defendants have not justified their request for a security in the amount of over $29,000. A second declaration from counsel Steven Dailey states that the requested amount represents the amount of costs and fees incurred in defending Plaintiff’s prior lawsuit before Judge Pennypacker (case No. 25CV467520).

The court does not find that to be a reasonable estimate of the amount of costs and fees that have been incurred in this case. Based on its review of the records in this case, the court finds that $10,000 is an appropriate undertaking in this matter. The court will also enter a prefiling order under section 391.7.

CONCLUSION

Defendants’ request for judicial notice is granted.

Defendants’ demurrer to the entire complaint on the ground that it is barred by res judicata is sustained without leave to amend. Plaintiff’s request to file a sur-reply is denied.

Defendants’ motion to strike portions of the complaint is denied as moot.

Defendants’ motion to declare Plaintiff a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(2), is granted. Plaintiff is prohibited from filing any new litigation in the courts of this state in propria persona without first obtaining leave from the presiding judge of the court where the proposed litigation is to be filed. (Code Civ. Proc., § 391.7, subd. (a).) Disobedience of the order by a vexatious litigant may be punished as a contempt of court. (Code Civ. Proc., § 391.7, subd. (a).) Plaintiff is ordered to furnish to the court, for the benefit of Defendants, security in the amount of $10,000 no later than August 28, 2026. Failure to furnish that security will lead to dismissal of this action. (Code Civ. Proc., §§ 391.3, subd. (a), 391.4.) The litigation is stayed unless and until that security is furnished. (Code Civ. Proc., § 391.6.)

Counsel for Defendants is ordered to prepare and submit for the court’s review the mandatory prefiling order (Judicial Council Form MC-700). (Code Civ. Proc., § 391.7, subd. (f).) The clerk of this court will thereafter be directed to provide a copy of that order to the Judicial Council. (Code Civ. Proc., § 391.7, subd. (d).)

The court will hold case status review regarding this case on September 3, 2026, at 11:00 a.m. in Department 10.

The court will prepare the order on these three matters.

- oo0oo -

13