Preview
To: Page 3o0f17 2018-08-31 20:21:49 (GMT) 12156237064 From: Matthew Witteman
FILED BY FAX
ALAMEDA COUNTY
1 | Anthony Malfatti August 31, 2018
4400 Keller Avenue, Ste #140-391 CLERK OF
- THE SUPERIOR COURT
* |Oakland, CA 94605 By Alicia Espinoza, Deputy
(510) 305-8318
3. |'TA Financial’ CASE NUMBER:
RG18919221
4 |Plaintiff in Pro Per
5
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
6
COUNTY OF ALAMEDA
7
UNLIMITED JURISDICTION
8
9 ) Case No.
ANTHONY MALFATTI, j
10 )
Plaintiff, ) COMPLAINT FOR
i ) PROFESSIONAL NEGLIGENCE,
VS. ) BREACH OF CONTRACT,
12 ) BREACH OF DUTY OF GOOD
MARK LAPHAM, EDWARD CHUNG, ) FAITH AND FAIR DEALING,
5 | CLARISSE CHUNG, CROSSROADS ) BREACH OF FIDUCIARY DUTY
14 LEGAL GROUP, and DOES I to 100. )
Defendants. JURY TRIAL DEMAND
15
)
16
17 Comes now plaintiff Anthony Malfatti (sometimes hereafter “MR. MALFATTI”), and
18 | alleges the following:
1. At all times relevant to this action, MR. MALFATTI was a citizen and resident of
20
Alameda County.
21
2. The agreements and conduct complained about all occurred in the County of
22
Alameda, and venue is appropriate in the County. The amount in controversy is similarly in
23
excess of $25,000 giving rise to this Court’s unlimited jurisdiction.
COMPLAINT - 1
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3. Defendant Mark Lapham (sometimes hereafter “LAPHAMY”) is a an individual
and attorney licensed in the State of California with an office in Contra Costa County, California,
but who at all times relevant to this action, entered into agreements and did business in Alameda
4 |County in such a way as to give rise to MR. MALFATTI’ claims herein. In light of defendant
5 |LAPHAM’s residence in the County of Contra Costa, venue might similarly be proper there.
6 4. Defendant Edward Chung (sometimes hereafter “E. CHUNG”), is a an individual
and attorney licensed in the State of California with an office in Santa Clara County, California,
8 but who at all times relevant to this action, entered into agreements and did business in Alameda
° County in such a way as to give rise to MR. MALFATTI’s claims herein. In light of defendant
° E. CHUNG’s residence in the County of Santa Clara, venue might similarly be proper there.
" 5. Defendant Clarisse Chung (sometimes hereafter “C. CHUNG”), is a an individual
12
B and attorney licensed in the State of California with an office in Santa Clara County, California,
4 but who at all times relevant to this action, entered into agreements and did business in Alameda
1s | County in such a way as to give tise to MR. MALFATTI’s claims herein. In light of defendant
16 |C. CHUNG?’s residence in the County of Santa Clara, venue might similarly be proper there.
17 6. Crossroads Legal Group (sometimes hereafter “CROSSROADS’”), is an entity of
18 | unknown form with its principal place of business in Santa Clara County. MR. MALFATTI is
19 | informed, believes, and thereupon alleges that defendants E. CHUNG and C. CHUNG are the
principals of Crossroads Legal Group. At all times relevant to this action Crossroads Legal
21 Group represented MR. MALFATTI through defendants. E. CHUNG and C. CHUNG.
” Defendants E. CHUNG, C. CHUNG, and Crossroads Legal Group are sometimes referred to
* hereafter collectively as ‘THE CHUNGS.” In light of defendant CROSSROAD’s residence in
5
. the County of Santa Clara, venue might similarly be proper there.
COMPLAINT - 2
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7. Defendants and cach of them at all times acted as the agents, employees, partners,
joint tort-feasors, co-conspirators, and/or joint venturers of one another. In doing the acts alleged
4 |herein, defendants and cach of them were acting at least in part within the course and scope of
5 |said agency, employment, partnership, joint-tort, conspiracy, and/or joint venture with the
6 | direction, advance knowledge, authorization, acquiescence, or subsequent ratification of one
7 another. Such parties assisted one another in the acts alleged herein. Defendants and each of
8 J them agreed to the course of action alleged herein, ratified, and conspired with and aided and
° abetted one another in achieving that objective and pursuing that course of action. Defendants
° and each of them benefited from the illegal and wrongful acts alleged herein, and should be held
" accountable for same. Without limiting the generality of the foregoing, Defendants and each of
. them acted with intentional, willful, and malicious disregard of the rights of plaintiff and the
4 impact of defendants’ conduct on plaintiffs.
15 GENERAL ALLEGATIONS
16 8. The defendants and cach of them acted as attorneys and represented MR.
17 |MALFATTI in two lawsuits against financial defendants arising out of the wrongful foreclosure
of MR. MALFATTI’s home at 9527 Granada Avenue, Oakland. Defendant LAPHAM’s
representation was carlier in time, stretching from 2015 and into 2017. LAPHAM researched,
‘
° drafted, and filed a complaint or complaints in Alameda Superior Court in 2016 in a case styled
* Malfatti v. Mortgage Electronic Registration Systems, Inc., et al, Alameda No. RG16808857,
21 and unsuccessfully defended against a demurrer in that case. MR. MALFATTI paid LAPHAM
22 | for these services. LAPHAM subsequently agreed to prosecute an appeal of the trial court’s
2323 | demurrer order, again taking a fee for doing the same, but failed to lodge or file a record of the
24 |trial court proceedings which caused MR. MALFATTI’s appeal to the California Court of
25 |Appeal to be dismissed on or around September 17, 2017. The Court of Appeal case number
COMPLAINT - 3
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1 | was Al49578. MR. MALFATTI did not find out about the dismissal or LAPHAM’s negligence
3 |in causing the dismissal until in or around December of 2017, because LAPHAM did not reveal
his errors or the resulting dismissal to MR. MALFATTL, and otherwise did not respond to MR.
MALFATTI’s inquiries and ceased communicating with MR. MALFATTI. This first litigation
4
shall sometimes be called “GRANADA ONE” herein.
5
9. During the foregoing representation, defendant LAPHAM drafted and caused to
6 be filed a second complaint in Alameda Superior Court, styled Malfatti y. Specialized Loan
7
Servicing, LLC., et al, with the trial court number of RG17853239, and the Court of Appeal case
8 |number of A153821. This litigation shall sometimes be called “GRANADA TWO” herein.
9 | After taking a fee to handle GRANADA TWO, and causing to be filed a First Amended
19 | Complaint in June of 2017, defendant LAPHAM exited the case, leaving MR. MALFATTI to
find another attorney to fill in for LAPHAM. That second attorney, or attorneys, were THE
CHUNGS. Once again, the trial court sustained a demurrer to MR. MALFATTI’s complaint in
° GRANADA TWO, without leave to amend, doing so on or about September 5, 2017.
® 10. In both instances, the defendants held themselves out to MR. MALFATTI to have
" particular expertise in wrongful foreclosure practice countering the abuses evidenced by the
bs “mortgage meltdown” of 2008, including the shuffling of debt and mortgages from one failing
16 institution to another, without notice to persons like MR. MALFATTI, and the engaging in sharp
17 | practices associated with double tracking at one in the same time foreclosure actions and debt
1g |renegotiation, outlawed by the 2012 Homeowner’s Bill of Rights in California. One of the lead
19 [eases that established the standing of plaintiff ike MR. MALFATTI in such cases is and was
Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.4" 919, MR. MALFATTI relied
upon the expertise of such defendants in pursuing GRANADA ONE and GRANDADA TWO.
21
Ih. Defendant LAPHAM, however, negligently failed to research, prepare, and
22
present MR. MALFATTI’s case in both GRANADA ONE and GRANADA TWO. Among
23 . . :
other things, defendant LAPHAM neglected to ascertain, establish, and plead that MR.
24
MALFATTIs primary residence was the Granada Avenue property, failed to plead, establish
25 | facts, and otherwise counter res judicata arguments, failed to understand and track the activities
COMPLAINT - 4
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1 |of previous attorneys in previous actions, and failed to represent MR. MALFATTI competently
3 |and completely in opposing demurrers, and/or failed to perfect an appeal. Defendant LAPHAM
then concealed his negligent errors, and failed to communicate with MR. MALFATTI about
them.
12. Additionally, defendants THE CHUNGS after having assured MR. MALFATTI
of their special expertise and the merits of his case and after having taken his money, failed to
contest a tentative decision on a demurrer, and reversed course and told the trial court judge in
7 |GRANADA TWO, that MR. MALFATTI’s case was without any merit and sanctionable and
8 |that MR. MALFATTI persisted in pursuing it despite the CHUNG’s admonitions to the contrary.
9 | Contrary to defendants’ protestations, MR. MALFATTI case was meritorious. THE CHUNGS
19 | Similarly pressured MR. MALFATTI to settle after and as a consequence of their failure to
prepare and defendant MR. MALFATTI’s case as alleged. Although GRANADA TWO is still
on appeal, and plaintiff is informed and believe should be reversed on the trial court record,
12
defendants THE CHUNGS nevertheless negligently failed to research, prepare, and present MR.
13
MALFATTI’s case in GRANADA TWO.
14
15 FIRST COUNT
(AS TO DEFENDANT LAPHAM)
16 (Professional Negligence)
7 + + . . +
13. MR. MALFATTI incorporates herein by this reference the preceding allegations.
18 . : <4
14, Defendants had a duty to exercise reasonable professional care in his
19
representation of MR. MALFATTI, a duty heightened by his statement to him that he had
20 | specialized knowledge.
21 15. The Defendant failed to discharge his duty of care.
Y 16. MR. MALFATTI was actually and proximately damaged by the defendant’s
53 | breach of care, including the loss of his home and the past or future equity to accrue in the home,
statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages
according to proof.
17. Defendant’s conduct was oppressive, fraudulent, and malicious, entitling MR.
COMPLAINT - 5
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1 | MALFATTI to punitive damages.
4 WHEREFORE MR. MALFATTI prays for judgment.
3 SECOND COUNT
(AS TO DEFENDANTS THE CHUNGS)
4 (Professional Negligence)
5
18. MR. MALFATTI incorporates herein by this reference the preceding allegations.
19, The Defendants THE CHUNGS had a duty to exercise reasonable professional
care in their representation of MR. MALFATTI, a duty heightened by their statements to him
8 | that they had specialized knowledge.
9 20. The Defendants failed to discharge their duty of care.
10 21, MR. MALFATTI was actually and proximately damaged by the defendants’
11 | breach of care, including the loss of his home and the past or future equity to accrue in the home,
statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages
" according to proof.
" 22. Defendants’ conduct was oppressive, fraudulent, and malicious, entitling MR.
" MALFATTI to punitive damages.
8 WHEREFORE MR. MALEATTI prays for judgment.
16
THIRD COUNT
7 (AS TO DEFENDANT LAPHAM)
(Breach of Written Contract)
23. MR. MALFATTI incorporates herein by this reference the preceding allegations.
‘
° 24. Defendant LAPHAMs entered into a written contract with MR. MALFATTI
*” pursuant to which he agreed to represent MR. MALFATTI on appeal in Alameda No.
2 RG16808857. A true and correct copy of the contract is attached as Exhibit A hereto.
22 25. The contract bound Defendant LAPHAM, inter alia, to “prepare, submit, and
«"23 |present all required paperwork for notice of appeal and the opening brief,” and to “designate the
24 record and order the clerks transcript,” and to “prepare a reply brief to Appellee’s opposition
25 «| brief... .“
COMPLAINT - 6
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I 26. MR. MALFATTI performed all duties required of him under the contract.
4 27. Defendant LAPHAM nevertheless breached and failed to perform his contractual
duties as alleged.
28. MR. MALFATTI was actually and proximately damaged by the defendant’s
4
breach, including the loss of his home and the past or future equity to accrue in the home,
5
statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages
6 . ~
according to proof.
7 WHEREFORE MR. MALFATTI prays for judgment
8
9 FOURTH COUNT
(AS TO DEFENDANT LAPHAM)
10 (Breach of Oral Contract)
iH 29, MR. MALFATTI incorporates herein by this reference the preceding allegations.
YD 30. Defendant LAPHAMs entered into an oral contract with MR. MALFATTI
B pursuant to which he agreed to represent MR. MALFATTI on appeal in Alameda No.
RG16808857. The terms of the oral contract were the same as those in the written contract, a
14
true and correct copy of which is attached as Exhibit A hereto.
15
31. The contract bound Defendant LAPHAM, inter alia, to “prepare, submit, and
16
present all required paperwork for notice of appeal and the opening brief,” and to “designate the
17 | record and order the clerks transcript,” and to “prepare a reply brief to Appellee’s opposition
18 | brief...“
19 32. MR. MALFATTI performed all duties required of him under the contract.
33. Defendant LAPHAM nevertheless breached and failed to perform his contractual
duties as alleged.
21
» 34. MR. MALFATTI was actually and proximately damaged by the defendant’s
- breach, including the loss of his home and the past or future equity to accrue in the home,
° statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages
a according to proof.
25 WHEREFORE MR. MALFATTI prays for judgment
COMPLAINT - 7
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FIFTH COUNT
1 (AS TO DEFENDANT LAPHAM)
2 (Breach of Implied Covenant of Good Faith and Fair Dealing)
; 35. MR. MALFATTI incorporates herein by this reference the preceding allegations.
/ 36. Defendant LAPHAM entered into written or oral contracts with MR. MALFATTI
‘ pursuant to which he agreed to represent MR. MALFATTI’s interest diligently, and pursuant to
> | which a covenant of good faith and fair dealing attached.
6 37. The defendant breached that covenant as alleged.
7 38. MR. MALFATTI was actually and proximately damaged by the defendant’s
g | breach, including the loss of his home and the past or future equity to accrue in the home,
9 |Statutory damages, attorney’s fecs, and costs, emotional distress damages, and other damages
according to proof.
WHEREFORE MR. MALFATTI prays for judgment.
2 SIXTH COUNT
(AS TO DEFENDANTS THE CHUNGS)
B (Breach of Implied Covenant of Good Faith and Fair Dealing)
14 39, MR. MALFATTI incorporates herein by this reference the preceding allegations.
15 40. The defendants THE CHUNGS entered into written or oral contracts with MR.
16 | MALFATTI pursuant to which they agreed to represent MR. MALFATTI’s interest diligently,
and pursuant to which a covenant of good faith and fair dealing attached.
17
i" Al. The defendants breached that covenant as alleged.
: 42. MR. MALFATTI was actually and proximately damaged by the defendant’s
” breach, including the loss of his home and the past or future equity to accrue in the home,
70 statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages
21 according to proof.
22 WHEREFORE MR. MALFATTI prays for judgment
23
SEVENTH COUNT
24 (AS TO DEFENDANTS THE CHUNGS)
(Breach of Fiduciary Duty)
43. MR. MALFATTI incorporates herein by this reference the preceding allegations.
COMPLAINT - 8
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I 44, The Defendants THE CHUNGS had a fiduciary or other duty to MR. MALFATTI
3 | to represent him zealously and not to take positions before the court or in public which were
adverse to MR. MALFATTI’s interests, and not to disclose attorney-client communications or
confidential matters to the court or public.
4
45, The defendant CHUNGS breached these duties by making statements to the trial
5
court wrongfully demeaning the merits of MR. MALFATTI’s claims and disclosing attorney-
6 : ae
client communications to the court as alleged.
7 46. MR. MALFATTI was actually and proximately damaged by the defendant’s
8 |breach, including the loss of his home and the past or future equity to accrue in the home,
9 |statutory damages, attorncy’s fees, and costs, emotional distress damages, and other damages
19 | according to proof.
HW 47. Defendants’ conduct was oppressive, fraudulent, and malicious, entitling MR.
» MALFATTI to punitive damages.
WHEREFORE MR. MALFATTI prays for judgment as set forth below:
° 1. General and/or special damages including but not necessarily limited to the loss off
i" his home and the past or future equity to accrue in the home, attorney’s fees, and costs,
‘S| emotional distress damages, and other damages according to proof;
16 2. Alternately, the amount MR. MALFATTI has paid to the defendants for their
17 | representation;
18 3. Punitive damages according to proof;
19 4. Attorneys’ fees;
Costs of suit;
7 6. Equitable relief as the court deems appropriate;
7. A jury trial;
22
Ai
23
if
24 a
25 | Hf
COMPLAINT - 9
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i &. Such and further relief as the court deems just.
DATED: 8/31/2018
4 ANTHONY
Clase MALEATTI
PLAINTIFF INPRO PER
COMPLAINT - 18
To: Page 13 of 17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman
Mark W. Lapham
751 Diablo Rd.
Danville, CA 94526
Ph. 925-837-9007 fax 925-406-1616
ATTORNEY-CLIENT FEE AGREEMENT
ENGAGEMENT CONTRACT FOR LEGAL SERVICES
MARK W. LAPHAM, (“Attorney”), and TONY MALFATTI (“Client”} hereby agree:
SCOPE AND PURPOSE OF ENGAGEMENT. Appeal from Alameda Superior Court ruling granting
defendants SPECIALIZED LOAN SERVICING (“SLS"}, HSBC BANK USA, NATIONAL ASSOCIATIO. AS TRUSTEE
FOR DEUTSCHE ALT-A SECURITIES, INC, MORTGAGE LOAN TRUST, MORTGAGE PASSS-THROUGH
CERTIFICATES, SERIES 2007-044 demurrer and dismissing the case against each of them. The date of the
Order is August 30°, 2016. The Order was signed by Superior Court Judge Joe Lynne Q-Lee on the same
date. Attorney will prepare, submit and present all required paperwork for notice of appeal and the
opening brief. Attorney will designate the record and order the clerks transcripts. He will also prepare a
reply brief to Appellee’s opposition brief and be present for oral argument if allowed by the court.
B. FEE and DEPOSIT. Client agrees to this Engagement Contract for legal services.and to pay Attorney a
fixed fee of $6,000.00 in lieu of an hourly rate for-professional legal services. These fees include $1,000 in
appellate filing fees, service fees, and estimated clerks transcript fees. If additional services outside the
scope.of this Engagement Contract, Attorney will charge additional fees based on estimates of future work
and may not provide further services outside the scope of this Engagement Contract without Client's
additional deposits for additional services required
SCHEDULE OF PAYMENTS—Client agrees to pay attorney under the follawing:schedule: $6000,00 upon
execution of the agreement
C. END OF ENGAGEMENT: Attorney's legal services. will be concluded once one of the following has
occurred:
4. The appeal proceedings have been concluded with.a decision either in favorof the Client or
adverse to the Client.
DB. CONFLICT OF INTEREST. In the event that Attorney perceives any conflict of interest, or if you fail to pay
fees.and/or costs: when due, Attorney have the right to immediately withdraw from representing you. in
the event Attorney withdraws as counsel of record for non-payment of any fee-or cost, you agree to
consent to this request and not oppase the withdrawal in any way the relief being sought by. Attorney.
E. CLIENT'S RESPONSIBILITY TO COOPERATE. It is understood betweén. client and Attorney that the client
has and will continue-to have.an. ongoing responsibility to provide information as requested by Attorney
and Its staff for the purpose of properly handling the client’s case. This Information includes, but is not
A00t
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limited to.any and all. communications the clent has.had with any third parties: regarding the mortgage
loan and mortgaged property al issue; any. and all pleadings filed by or against the client or the client's
subject property. in the event the client fails te provide information in a timely manner, Attorney reserves
the right to withdraw. as counsel of record from representation of the client.
F. COMMENCEMENT OF REPRESENTATION. It is EXPRESSELY UNDERSTOOD between the parties herein
that Attorney will not initiate-any professional services defined under this Engagement Contract-until the
client has paid thé initial $6000.00 fee in itern B (FEE & DEPOSIT) abowe. Attorney shall not be responsible
for any adverse consequences that occur in-your case in the evant that there is a-delay in the sayment of
Attorney's fee and deposit. The Effective date of this engagement-cantract shall be deemed te be-the date
that you pay Attorney's initial fee and notthe date you signed this Engagement Contract. This Agreement
will govern ali legal services performed by Attorney on behalf of Client commencing with the date
Attormey first performed services, Even if this Agreement does not take effect, Client will be obligated to
pay Attorney the reasonable value of any services. Attorney may have performed for Clent.
F, THIRD PARTY COSTS AND OTHER CHARGES.
fa) Attorney will incur various third party casts and expenses in performing legal services under this
Agreement. ‘Client-agrees to pay for all costs and expenses in addition to the hourly fees. The costs.and
expenses commonly include, expert declaration in suppart of client's civil action, service of process
charges, filing fees, court and deposition reporters’ fees, jury fees, notary fees, deposition costs,
messenger and other mailing/delivery fees, postage, photocopying (in-house fee:at $0.25/ea,) and other
reproduction casts and travel costs,
{b) Client. may be required to pay fees and/or costs to other parties in the action, as may be ordered by
the Court. Any such payment will be entirely the responsibility of Client.
G. BILUNG STATEMENTS. Attorney will send Client periodic statements. Each statement will be payable
within 10 days of its mailing date. Overdue payments will be charged 1% interest per month.
H, DISCHARGE AND WITHDRAWAL. Client may discharge Attorney at.any time with or without cause,
Attorney may withdraw with Client's consent or for good cause. Good cause includes Clilent’s breach of
this Agreement, refusal to cooperate or to follow Attorney's advice.on.a material matter‘or any fact or
circumstance that would render Attorney's continuing representation unlawtul or unethical.
|, DISCLAIMER OF GUARANTEE AND ESNMATES, Nothing in this Agreement and nothing in Attorney's
statements to Client will be construed as a promise or guarantee about the outcome of legal matters.
J CAUIPORGILA LAW. Client is aware that Mark W. Lapham is licensed to.practice law in-California and
idaho notin any other state or country. Attorney will render its services from California and based on
California law.
J-ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties.
A002
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kK. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of this Agreement is held in whole or
in part to be unenforceable for any reason, the inder- of that provision and of the entire Agreement
will be severable and remain in effect,
L. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may be modified by subsequent
agreement of the parties only In writing signed by both of them, or an oral agreement only to the extent
that the parties carry it out.
M. EFFECTIVE DATE. This Apreement will govern.ail fepal services performed by Attorney on behalf of
Client commencing with the date Attorney first performed services. The date at the beginning of this
Agreement is for reference.onty. Even if this Agreement does not take effect, Client will be obligated to
pay Attorney the reasonable value of any services Attorney may have performed for CHent.
THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE
DATE ATTORNEY FIRST PROVIDED SERVICES. IF MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES
TO BE LIABLE, JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT.
DATED: Octeber 12, 2016
TONY MALFATTI (Chent}
Address:
Telephone:
NOT EFFECTIVE UNTIL COUNTER-SIGNED
DATED: October 12, 2016
Mark W. Lapham SBN 146352
A003
Preview
To: Page 3o0f17 2018-08-31 20:21:49 (GMT) 12156237064 From: Matthew Witteman FILED BY FAX ALAMEDA COUNTY 1 | Anthony Malfatti August 31, 2018 4400 Keller Avenue, Ste #140-391 CLERK OF - THE SUPERIOR COURT * |Oakland, CA 94605 By Alicia Espinoza, Deputy (510) 305-8318 3. |'TA Financial’ CASE NUMBER: RG18919221 4 |Plaintiff in Pro Per 5 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 6 COUNTY OF ALAMEDA 7 UNLIMITED JURISDICTION 8 9 ) Case No. ANTHONY MALFATTI, j 10 ) Plaintiff, ) COMPLAINT FOR i ) PROFESSIONAL NEGLIGENCE, VS. ) BREACH OF CONTRACT, 12 ) BREACH OF DUTY OF GOOD MARK LAPHAM, EDWARD CHUNG, ) FAITH AND FAIR DEALING, 5 | CLARISSE CHUNG, CROSSROADS ) BREACH OF FIDUCIARY DUTY 14 LEGAL GROUP, and DOES I to 100. ) Defendants. JURY TRIAL DEMAND 15 ) 16 17 Comes now plaintiff Anthony Malfatti (sometimes hereafter “MR. MALFATTI”), and 18 | alleges the following: 1. At all times relevant to this action, MR. MALFATTI was a citizen and resident of 20 Alameda County. 21 2. The agreements and conduct complained about all occurred in the County of 22 Alameda, and venue is appropriate in the County. The amount in controversy is similarly in 23 excess of $25,000 giving rise to this Court’s unlimited jurisdiction. COMPLAINT - 1 To: Page 4o0f17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman 3. Defendant Mark Lapham (sometimes hereafter “LAPHAMY”) is a an individual and attorney licensed in the State of California with an office in Contra Costa County, California, but who at all times relevant to this action, entered into agreements and did business in Alameda 4 |County in such a way as to give rise to MR. MALFATTI’ claims herein. In light of defendant 5 |LAPHAM’s residence in the County of Contra Costa, venue might similarly be proper there. 6 4. Defendant Edward Chung (sometimes hereafter “E. CHUNG”), is a an individual and attorney licensed in the State of California with an office in Santa Clara County, California, 8 but who at all times relevant to this action, entered into agreements and did business in Alameda ° County in such a way as to give rise to MR. MALFATTI’s claims herein. In light of defendant ° E. CHUNG’s residence in the County of Santa Clara, venue might similarly be proper there. " 5. Defendant Clarisse Chung (sometimes hereafter “C. CHUNG”), is a an individual 12 B and attorney licensed in the State of California with an office in Santa Clara County, California, 4 but who at all times relevant to this action, entered into agreements and did business in Alameda 1s | County in such a way as to give tise to MR. MALFATTI’s claims herein. In light of defendant 16 |C. CHUNG?’s residence in the County of Santa Clara, venue might similarly be proper there. 17 6. Crossroads Legal Group (sometimes hereafter “CROSSROADS’”), is an entity of 18 | unknown form with its principal place of business in Santa Clara County. MR. MALFATTI is 19 | informed, believes, and thereupon alleges that defendants E. CHUNG and C. CHUNG are the principals of Crossroads Legal Group. At all times relevant to this action Crossroads Legal 21 Group represented MR. MALFATTI through defendants. E. CHUNG and C. CHUNG. ” Defendants E. CHUNG, C. CHUNG, and Crossroads Legal Group are sometimes referred to * hereafter collectively as ‘THE CHUNGS.” In light of defendant CROSSROAD’s residence in 5 . the County of Santa Clara, venue might similarly be proper there. COMPLAINT - 2 To: Page 5 of17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman 7. Defendants and cach of them at all times acted as the agents, employees, partners, joint tort-feasors, co-conspirators, and/or joint venturers of one another. In doing the acts alleged 4 |herein, defendants and cach of them were acting at least in part within the course and scope of 5 |said agency, employment, partnership, joint-tort, conspiracy, and/or joint venture with the 6 | direction, advance knowledge, authorization, acquiescence, or subsequent ratification of one 7 another. Such parties assisted one another in the acts alleged herein. Defendants and each of 8 J them agreed to the course of action alleged herein, ratified, and conspired with and aided and ° abetted one another in achieving that objective and pursuing that course of action. Defendants ° and each of them benefited from the illegal and wrongful acts alleged herein, and should be held " accountable for same. Without limiting the generality of the foregoing, Defendants and each of . them acted with intentional, willful, and malicious disregard of the rights of plaintiff and the 4 impact of defendants’ conduct on plaintiffs. 15 GENERAL ALLEGATIONS 16 8. The defendants and cach of them acted as attorneys and represented MR. 17 |MALFATTI in two lawsuits against financial defendants arising out of the wrongful foreclosure of MR. MALFATTI’s home at 9527 Granada Avenue, Oakland. Defendant LAPHAM’s representation was carlier in time, stretching from 2015 and into 2017. LAPHAM researched, ‘ ° drafted, and filed a complaint or complaints in Alameda Superior Court in 2016 in a case styled * Malfatti v. Mortgage Electronic Registration Systems, Inc., et al, Alameda No. RG16808857, 21 and unsuccessfully defended against a demurrer in that case. MR. MALFATTI paid LAPHAM 22 | for these services. LAPHAM subsequently agreed to prosecute an appeal of the trial court’s 2323 | demurrer order, again taking a fee for doing the same, but failed to lodge or file a record of the 24 |trial court proceedings which caused MR. MALFATTI’s appeal to the California Court of 25 |Appeal to be dismissed on or around September 17, 2017. The Court of Appeal case number COMPLAINT - 3 To: Page 6 of 17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman 1 | was Al49578. MR. MALFATTI did not find out about the dismissal or LAPHAM’s negligence 3 |in causing the dismissal until in or around December of 2017, because LAPHAM did not reveal his errors or the resulting dismissal to MR. MALFATTL, and otherwise did not respond to MR. MALFATTI’s inquiries and ceased communicating with MR. MALFATTI. This first litigation 4 shall sometimes be called “GRANADA ONE” herein. 5 9. During the foregoing representation, defendant LAPHAM drafted and caused to 6 be filed a second complaint in Alameda Superior Court, styled Malfatti y. Specialized Loan 7 Servicing, LLC., et al, with the trial court number of RG17853239, and the Court of Appeal case 8 |number of A153821. This litigation shall sometimes be called “GRANADA TWO” herein. 9 | After taking a fee to handle GRANADA TWO, and causing to be filed a First Amended 19 | Complaint in June of 2017, defendant LAPHAM exited the case, leaving MR. MALFATTI to find another attorney to fill in for LAPHAM. That second attorney, or attorneys, were THE CHUNGS. Once again, the trial court sustained a demurrer to MR. MALFATTI’s complaint in ° GRANADA TWO, without leave to amend, doing so on or about September 5, 2017. ® 10. In both instances, the defendants held themselves out to MR. MALFATTI to have " particular expertise in wrongful foreclosure practice countering the abuses evidenced by the bs “mortgage meltdown” of 2008, including the shuffling of debt and mortgages from one failing 16 institution to another, without notice to persons like MR. MALFATTI, and the engaging in sharp 17 | practices associated with double tracking at one in the same time foreclosure actions and debt 1g |renegotiation, outlawed by the 2012 Homeowner’s Bill of Rights in California. One of the lead 19 [eases that established the standing of plaintiff ike MR. MALFATTI in such cases is and was Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.4" 919, MR. MALFATTI relied upon the expertise of such defendants in pursuing GRANADA ONE and GRANDADA TWO. 21 Ih. Defendant LAPHAM, however, negligently failed to research, prepare, and 22 present MR. MALFATTI’s case in both GRANADA ONE and GRANADA TWO. Among 23 . . : other things, defendant LAPHAM neglected to ascertain, establish, and plead that MR. 24 MALFATTIs primary residence was the Granada Avenue property, failed to plead, establish 25 | facts, and otherwise counter res judicata arguments, failed to understand and track the activities COMPLAINT - 4 To: Page 7 of 17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman 1 |of previous attorneys in previous actions, and failed to represent MR. MALFATTI competently 3 |and completely in opposing demurrers, and/or failed to perfect an appeal. Defendant LAPHAM then concealed his negligent errors, and failed to communicate with MR. MALFATTI about them. 12. Additionally, defendants THE CHUNGS after having assured MR. MALFATTI of their special expertise and the merits of his case and after having taken his money, failed to contest a tentative decision on a demurrer, and reversed course and told the trial court judge in 7 |GRANADA TWO, that MR. MALFATTI’s case was without any merit and sanctionable and 8 |that MR. MALFATTI persisted in pursuing it despite the CHUNG’s admonitions to the contrary. 9 | Contrary to defendants’ protestations, MR. MALFATTI case was meritorious. THE CHUNGS 19 | Similarly pressured MR. MALFATTI to settle after and as a consequence of their failure to prepare and defendant MR. MALFATTI’s case as alleged. Although GRANADA TWO is still on appeal, and plaintiff is informed and believe should be reversed on the trial court record, 12 defendants THE CHUNGS nevertheless negligently failed to research, prepare, and present MR. 13 MALFATTI’s case in GRANADA TWO. 14 15 FIRST COUNT (AS TO DEFENDANT LAPHAM) 16 (Professional Negligence) 7 + + . . + 13. MR. MALFATTI incorporates herein by this reference the preceding allegations. 18 . : <4 14, Defendants had a duty to exercise reasonable professional care in his 19 representation of MR. MALFATTI, a duty heightened by his statement to him that he had 20 | specialized knowledge. 21 15. The Defendant failed to discharge his duty of care. Y 16. MR. MALFATTI was actually and proximately damaged by the defendant’s 53 | breach of care, including the loss of his home and the past or future equity to accrue in the home, statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages according to proof. 17. Defendant’s conduct was oppressive, fraudulent, and malicious, entitling MR. COMPLAINT - 5 To: Page 8 of 17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman 1 | MALFATTI to punitive damages. 4 WHEREFORE MR. MALFATTI prays for judgment. 3 SECOND COUNT (AS TO DEFENDANTS THE CHUNGS) 4 (Professional Negligence) 5 18. MR. MALFATTI incorporates herein by this reference the preceding allegations. 19, The Defendants THE CHUNGS had a duty to exercise reasonable professional care in their representation of MR. MALFATTI, a duty heightened by their statements to him 8 | that they had specialized knowledge. 9 20. The Defendants failed to discharge their duty of care. 10 21, MR. MALFATTI was actually and proximately damaged by the defendants’ 11 | breach of care, including the loss of his home and the past or future equity to accrue in the home, statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages " according to proof. " 22. Defendants’ conduct was oppressive, fraudulent, and malicious, entitling MR. " MALFATTI to punitive damages. 8 WHEREFORE MR. MALEATTI prays for judgment. 16 THIRD COUNT 7 (AS TO DEFENDANT LAPHAM) (Breach of Written Contract) 23. MR. MALFATTI incorporates herein by this reference the preceding allegations. ‘ ° 24. Defendant LAPHAMs entered into a written contract with MR. MALFATTI *” pursuant to which he agreed to represent MR. MALFATTI on appeal in Alameda No. 2 RG16808857. A true and correct copy of the contract is attached as Exhibit A hereto. 22 25. The contract bound Defendant LAPHAM, inter alia, to “prepare, submit, and «"23 |present all required paperwork for notice of appeal and the opening brief,” and to “designate the 24 record and order the clerks transcript,” and to “prepare a reply brief to Appellee’s opposition 25 «| brief... .“ COMPLAINT - 6 To: Page 9 of17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman I 26. MR. MALFATTI performed all duties required of him under the contract. 4 27. Defendant LAPHAM nevertheless breached and failed to perform his contractual duties as alleged. 28. MR. MALFATTI was actually and proximately damaged by the defendant’s 4 breach, including the loss of his home and the past or future equity to accrue in the home, 5 statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages 6 . ~ according to proof. 7 WHEREFORE MR. MALFATTI prays for judgment 8 9 FOURTH COUNT (AS TO DEFENDANT LAPHAM) 10 (Breach of Oral Contract) iH 29, MR. MALFATTI incorporates herein by this reference the preceding allegations. YD 30. Defendant LAPHAMs entered into an oral contract with MR. MALFATTI B pursuant to which he agreed to represent MR. MALFATTI on appeal in Alameda No. RG16808857. The terms of the oral contract were the same as those in the written contract, a 14 true and correct copy of which is attached as Exhibit A hereto. 15 31. The contract bound Defendant LAPHAM, inter alia, to “prepare, submit, and 16 present all required paperwork for notice of appeal and the opening brief,” and to “designate the 17 | record and order the clerks transcript,” and to “prepare a reply brief to Appellee’s opposition 18 | brief...“ 19 32. MR. MALFATTI performed all duties required of him under the contract. 33. Defendant LAPHAM nevertheless breached and failed to perform his contractual duties as alleged. 21 » 34. MR. MALFATTI was actually and proximately damaged by the defendant’s - breach, including the loss of his home and the past or future equity to accrue in the home, ° statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages a according to proof. 25 WHEREFORE MR. MALFATTI prays for judgment COMPLAINT - 7 To: Page 10 of 17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman FIFTH COUNT 1 (AS TO DEFENDANT LAPHAM) 2 (Breach of Implied Covenant of Good Faith and Fair Dealing) ; 35. MR. MALFATTI incorporates herein by this reference the preceding allegations. / 36. Defendant LAPHAM entered into written or oral contracts with MR. MALFATTI ‘ pursuant to which he agreed to represent MR. MALFATTI’s interest diligently, and pursuant to > | which a covenant of good faith and fair dealing attached. 6 37. The defendant breached that covenant as alleged. 7 38. MR. MALFATTI was actually and proximately damaged by the defendant’s g | breach, including the loss of his home and the past or future equity to accrue in the home, 9 |Statutory damages, attorney’s fecs, and costs, emotional distress damages, and other damages according to proof. WHEREFORE MR. MALFATTI prays for judgment. 2 SIXTH COUNT (AS TO DEFENDANTS THE CHUNGS) B (Breach of Implied Covenant of Good Faith and Fair Dealing) 14 39, MR. MALFATTI incorporates herein by this reference the preceding allegations. 15 40. The defendants THE CHUNGS entered into written or oral contracts with MR. 16 | MALFATTI pursuant to which they agreed to represent MR. MALFATTI’s interest diligently, and pursuant to which a covenant of good faith and fair dealing attached. 17 i" Al. The defendants breached that covenant as alleged. : 42. MR. MALFATTI was actually and proximately damaged by the defendant’s ” breach, including the loss of his home and the past or future equity to accrue in the home, 70 statutory damages, attorney’s fees, and costs, emotional distress damages, and other damages 21 according to proof. 22 WHEREFORE MR. MALFATTI prays for judgment 23 SEVENTH COUNT 24 (AS TO DEFENDANTS THE CHUNGS) (Breach of Fiduciary Duty) 43. MR. MALFATTI incorporates herein by this reference the preceding allegations. COMPLAINT - 8 To: Page 11 of 17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman I 44, The Defendants THE CHUNGS had a fiduciary or other duty to MR. MALFATTI 3 | to represent him zealously and not to take positions before the court or in public which were adverse to MR. MALFATTI’s interests, and not to disclose attorney-client communications or confidential matters to the court or public. 4 45, The defendant CHUNGS breached these duties by making statements to the trial 5 court wrongfully demeaning the merits of MR. MALFATTI’s claims and disclosing attorney- 6 : ae client communications to the court as alleged. 7 46. MR. MALFATTI was actually and proximately damaged by the defendant’s 8 |breach, including the loss of his home and the past or future equity to accrue in the home, 9 |statutory damages, attorncy’s fees, and costs, emotional distress damages, and other damages 19 | according to proof. HW 47. Defendants’ conduct was oppressive, fraudulent, and malicious, entitling MR. » MALFATTI to punitive damages. WHEREFORE MR. MALFATTI prays for judgment as set forth below: ° 1. General and/or special damages including but not necessarily limited to the loss off i" his home and the past or future equity to accrue in the home, attorney’s fees, and costs, ‘S| emotional distress damages, and other damages according to proof; 16 2. Alternately, the amount MR. MALFATTI has paid to the defendants for their 17 | representation; 18 3. Punitive damages according to proof; 19 4. Attorneys’ fees; Costs of suit; 7 6. Equitable relief as the court deems appropriate; 7. A jury trial; 22 Ai 23 if 24 a 25 | Hf COMPLAINT - 9 To: Page 12 0f17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman i &. Such and further relief as the court deems just. DATED: 8/31/2018 4 ANTHONY Clase MALEATTI PLAINTIFF INPRO PER COMPLAINT - 18 To: Page 13 of 17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman Mark W. Lapham 751 Diablo Rd. Danville, CA 94526 Ph. 925-837-9007 fax 925-406-1616 ATTORNEY-CLIENT FEE AGREEMENT ENGAGEMENT CONTRACT FOR LEGAL SERVICES MARK W. LAPHAM, (“Attorney”), and TONY MALFATTI (“Client”} hereby agree: SCOPE AND PURPOSE OF ENGAGEMENT. Appeal from Alameda Superior Court ruling granting defendants SPECIALIZED LOAN SERVICING (“SLS"}, HSBC BANK USA, NATIONAL ASSOCIATIO. AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC, MORTGAGE LOAN TRUST, MORTGAGE PASSS-THROUGH CERTIFICATES, SERIES 2007-044 demurrer and dismissing the case against each of them. The date of the Order is August 30°, 2016. The Order was signed by Superior Court Judge Joe Lynne Q-Lee on the same date. Attorney will prepare, submit and present all required paperwork for notice of appeal and the opening brief. Attorney will designate the record and order the clerks transcripts. He will also prepare a reply brief to Appellee’s opposition brief and be present for oral argument if allowed by the court. B. FEE and DEPOSIT. Client agrees to this Engagement Contract for legal services.and to pay Attorney a fixed fee of $6,000.00 in lieu of an hourly rate for-professional legal services. These fees include $1,000 in appellate filing fees, service fees, and estimated clerks transcript fees. If additional services outside the scope.of this Engagement Contract, Attorney will charge additional fees based on estimates of future work and may not provide further services outside the scope of this Engagement Contract without Client's additional deposits for additional services required SCHEDULE OF PAYMENTS—Client agrees to pay attorney under the follawing:schedule: $6000,00 upon execution of the agreement C. END OF ENGAGEMENT: Attorney's legal services. will be concluded once one of the following has occurred: 4. The appeal proceedings have been concluded with.a decision either in favorof the Client or adverse to the Client. DB. CONFLICT OF INTEREST. In the event that Attorney perceives any conflict of interest, or if you fail to pay fees.and/or costs: when due, Attorney have the right to immediately withdraw from representing you. in the event Attorney withdraws as counsel of record for non-payment of any fee-or cost, you agree to consent to this request and not oppase the withdrawal in any way the relief being sought by. Attorney. E. CLIENT'S RESPONSIBILITY TO COOPERATE. It is understood betweén. client and Attorney that the client has and will continue-to have.an. ongoing responsibility to provide information as requested by Attorney and Its staff for the purpose of properly handling the client’s case. This Information includes, but is not A00t To: Page 14 0f17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman limited to.any and all. communications the clent has.had with any third parties: regarding the mortgage loan and mortgaged property al issue; any. and all pleadings filed by or against the client or the client's subject property. in the event the client fails te provide information in a timely manner, Attorney reserves the right to withdraw. as counsel of record from representation of the client. F. COMMENCEMENT OF REPRESENTATION. It is EXPRESSELY UNDERSTOOD between the parties herein that Attorney will not initiate-any professional services defined under this Engagement Contract-until the client has paid thé initial $6000.00 fee in itern B (FEE & DEPOSIT) abowe. Attorney shall not be responsible for any adverse consequences that occur in-your case in the evant that there is a-delay in the sayment of Attorney's fee and deposit. The Effective date of this engagement-cantract shall be deemed te be-the date that you pay Attorney's initial fee and notthe date you signed this Engagement Contract. This Agreement will govern ali legal services performed by Attorney on behalf of Client commencing with the date Attormey first performed services, Even if this Agreement does not take effect, Client will be obligated to pay Attorney the reasonable value of any services. Attorney may have performed for Clent. F, THIRD PARTY COSTS AND OTHER CHARGES. fa) Attorney will incur various third party casts and expenses in performing legal services under this Agreement. ‘Client-agrees to pay for all costs and expenses in addition to the hourly fees. The costs.and expenses commonly include, expert declaration in suppart of client's civil action, service of process charges, filing fees, court and deposition reporters’ fees, jury fees, notary fees, deposition costs, messenger and other mailing/delivery fees, postage, photocopying (in-house fee:at $0.25/ea,) and other reproduction casts and travel costs, {b) Client. may be required to pay fees and/or costs to other parties in the action, as may be ordered by the Court. Any such payment will be entirely the responsibility of Client. G. BILUNG STATEMENTS. Attorney will send Client periodic statements. Each statement will be payable within 10 days of its mailing date. Overdue payments will be charged 1% interest per month. H, DISCHARGE AND WITHDRAWAL. Client may discharge Attorney at.any time with or without cause, Attorney may withdraw with Client's consent or for good cause. Good cause includes Clilent’s breach of this Agreement, refusal to cooperate or to follow Attorney's advice.on.a material matter‘or any fact or circumstance that would render Attorney's continuing representation unlawtul or unethical. |, DISCLAIMER OF GUARANTEE AND ESNMATES, Nothing in this Agreement and nothing in Attorney's statements to Client will be construed as a promise or guarantee about the outcome of legal matters. J CAUIPORGILA LAW. Client is aware that Mark W. Lapham is licensed to.practice law in-California and idaho notin any other state or country. Attorney will render its services from California and based on California law. J-ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties. A002 To: Page 15of17 2018-08-31 20:28:03 (GMT) 12156237064 From: Matthew Witteman kK. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the inder- of that provision and of the entire Agreement will be severable and remain in effect, L. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may be modified by subsequent agreement of the parties only In writing signed by both of them, or an oral agreement only to the extent that the parties carry it out. M. EFFECTIVE DATE. This Apreement will govern.ail fepal services performed by Attorney on behalf of Client commencing with the date Attorney first performed services. The date at the beginning of this Agreement is for reference.onty. Even if this Agreement does not take effect, Client will be obligated to pay Attorney the reasonable value of any services Attorney may have performed for CHent. THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. IF MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE, JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT. DATED: Octeber 12, 2016 TONY MALFATTI (Chent} Address: Telephone: NOT EFFECTIVE UNTIL COUNTER-SIGNED DATED: October 12, 2016 Mark W. Lapham SBN 146352 A003