Carbajal v. Wells Fargo Bank, N.A.

• Decision Date: 26 March 2020
• Docket Number: Court of Appeals No. 18CA1128
• Citation: 467 P.3d 1262
• Parties: Dean CARBAJAL, Plaintiff-Appellant, v. WELLS FARGO BANK, N.A., a corporation; Melva Selectman, individually; Carol Dwyer, individually; Faegre Drinker Biddle & Reath LLP, a limited liability partnership; Marie Williams, individually; Jeffrey Roberts, individually; Holland & Hart LLP, a limited liability partnership; Michael Carrigan, individually; Brian Berardini, individually; and Brown Dunning Walker PC, a professional corporation, Defendants-Appellees.
• Court: Colorado Court of Appeals

467 P.3d 1262

Dean CARBAJAL, Plaintiff-Appellant,

v.WELLS FARGO BANK, N.A., a corporation; Melva Selectman, individually; Carol Dwyer, individually; Faegre Drinker Biddle & Reath LLP, a limited liability partnership; Marie Williams, individually; Jeffrey Roberts, individually; Holland & Hart LLP, a limited liability partnership; Michael Carrigan, individually; Brian Berardini, individually; and Brown Dunning Walker PC, a professional corporation, Defendants-Appellees.

Court of Appeals No. 18CA1128

Colorado Court of Appeals, Division V.

Announced March 26, 2020

Dean Carbajal, Pro Se

Snell & Wilmer L.L.P., Byeongsook Seo, Cody Bourke, Denver, Colorado, for Defendants-Appellees Wells Fargo Bank, N.A., Melva Selectman, and Carol Dwyer

Wheeler Trigg O'Donnell LLP, Carolyn J. Fairless, Theresa Wardon Benz, Michael A. Blasie, Denver, Colorado, for Defendants-Appellees Faegre Drinker Biddle & Reath LLP, Marie Williams, Jeffrey Roberts, Holland & Hart LLP, and Michael Carrigan

Faraci Leasure, LLC, Paul A. Faraci, Glendale, Colorado, for Defendants-Appellees Brian Berardini and Brown Dunning Walker PC

Opinion by JUDGE HARRIS

¶1 Plaintiff Dean Carbajal appeals the dismissal of his independent equitable action to set aside a 2013 judgment based on alleged fraud. He also appeals the court's order granting a permanent injunction limiting his right to file pro se actions against certain of the defendants.

¶2 Because the fraud Carbajal has alleged amounts only to discovery violations, we conclude that he cannot satisfy the criteria for bringing an independent action under C.R.C.P. 60(b). Thus, we affirm the judgment dismissing Carbajal's amended complaint with prejudice. But because the district court's order granting the injunction fails to comply with the requirements of C.R.C.P. 65(d), we vacate the order and remand for further proceedings.

I. Background

¶3 In 2011, a jury convicted Carbajal of multiple offenses related to stalking his ex-girlfriend, a Wells Fargo bank teller. He was sentenced to a lengthy term in the custody of the Department of Corrections. The judgment of conviction was affirmed on appeal. People v. Carbajal , 2016 WL 3620195 (Colo. App. No. 12CA0410, June 30, 2016) (not published pursuant to C.A.R. 35(e) ).

¶4 Shortly thereafter, he sued Wells Fargo Bank, the teller, and two other employees, asserting claims for invasion of privacy, breach of fiduciary duty, and breach of contract. The complaint alleged that the teller had used her position at the bank to gain unauthorized access to Carbajal's private account information and then had used the information to extort him. Carbajal claimed that the bank and the other employees were vicariously liable for the teller's actions.

¶5 The district court granted summary judgment for the defendants on multiple grounds, including that Carbajal had failed to demonstrate any damages and that, as alleged, the teller was necessarily acting outside the scope of her employment for purposes of the vicarious liability claims. Carbajal appealed, and a division of this court affirmed. See Carbajal v. Wells Fargo (Colo. App. No. 13CA1473, Jan. 29, 2015) (not published pursuant to C.A.R. 35(f) ) (Carbajal I ).

¶6 In 2017, Carbajal filed the current lawsuit, alleging discovery misconduct during Carbajal I by Wells Fargo Bank, the two previously named employees, and the bank's lawyers (the Wells Fargo defendants), as well as by the law firm and lawyer who had represented the bank teller (the H&H defendants).¹

¶7 The claims were ostensibly prompted by an investigation by the Consumer Financial Protection Bureau (CFPB) that uncovered widespread improper banking practices at Wells Fargo. Specifically, as alleged in the complaint, a CFPB report exposed bank employees’ practices (spurred by employee incentive programs) of opening customer accounts and enrolling customers in banking services without their consent.

¶8 The gist of Carbajal's complaint is that the Wells Fargo and H&H defendants conspired to conceal and withhold information about these improper banking practices "with the intent and understanding to derail [Carbajal I ]." The complaint asserts claims for fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, and conspiracy to defraud, based on allegations exemplified by the following:

• "The [CFPB] exposed Wells Fargo's corrupt practices and, further, revealed the defendants’ fraud and misrepresentation during the course of litigation."

• During discovery in Carbajal I , the defendants refused to disclose any evidence "that would have revealed the existence of a systemic problem with Wells Fargo's training and supervision." The evidence "would have established liability against" the Carbajal I defendants.

• "The Wells Fargo Defendants ... worked together in the initial stages of litigation to conceal Wells Fargo's corrupt training, supervision, and fraudulent practices," and "carelessly or negligently violated" their obligations under C.R.C.P. 26. The conduct "misled Mr. Carbajal and the trial court."

• The Wells Fargo and H&H defendants intentionally concealed evidence and made misrepresentations during Carbajal I "to deceive Mr. Carbajal and [the trial court]" and to "prevent [Carbajal] from substantiating his claims against [the Carbajal I defendants]"; their conduct "ultimately induced the [trial court] to wrongfully dismiss" Carbajal's claims in Carbajal I .

• If the Wells Fargo and H&H defendants had not committed fraud "during the course of discovery and litigation," the [Carbajal I ] Defendants’ Motion for Summary Judgment would have failed and [Carbajal I ] would have been heard on the merits."

Carbajal sought a remedy for the "loss of prior claims and entitlement to relief" in Carbajal I .

¶9 The Wells Fargo and H&H defendants separately moved to dismiss Carbajal's complaint under C.R.C.P. 12(b)(5), supplying numerous grounds for dismissal, including that the complaint constituted a motion to set aside a judgment under Rule 60(b)(2) and, as such, was time barred. In response, Carbajal filed a substantially identical amended complaint, as well as responses to the motions to dismiss. As relevant here, he asserted that his lawsuit was not subject to the deadline for Rule 60(b)(2) motions because it was an "independent equitable action."

¶10 The district court, in a thorough written order, granted the motions to dismiss on all grounds asserted by the defendants, including that the claims were time barred under Rule 60(b)(2).²

II. Order Dismissing Carbajal's Action

¶11 The district court relied on multiple independent grounds for dismissal under Rule 12(b)(5). Carbajal challenges each ground on appeal.

A. Standard of Review

¶12 We review de novo a district court's ruling on a motion to dismiss under Rule 12(b)(5). Prospect Dev. Co. v. Holland & Knight, LLP , 2018 COA 107, ¶ 10, 433 P.3d 146. We apply the same standards as the district court, accepting all of the factual allegations in the complaint as true and viewing those allegations in the light most favorable to the plaintiff. Id.

¶13 When the district court dismisses a complaint on several independently sufficient grounds, we may affirm on any single ground. But we may also affirm on a ground not considered by the district court, if supported by the record. Taylor v. Taylor , 2016 COA 100, ¶ 31, 381 P.3d 428.

B. Independent Action to Set Aside the Judgment

¶14 Pursuant to Rule 60, a party may move to set aside a judgment on various grounds, including "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." C.R.C.P. 60(b)(2). A request to set aside a judgment under Rule 60(b)(2) must be made not more than 182 days from the date the judgment was entered.

¶15 Carbajal's complaint alleged that the defendants’ fraud during the discovery process deprived him of an opportunity to pursue his claims in Carbajal I and resulted in entry of an erroneous judgment. Thus, the district court construed his complaint as a motion under Rule 60(b)(2) to set aside the summary judgment in Carbajal I . Because the complaint was filed more than 182 days after the court entered summary judgment, the district court concluded that Carbajal's action was time barred.

¶16 On appeal, Carbajal does not dispute that he seeks to set aside the summary judgment based on the defendants’ alleged fraud during the discovery process. Indeed, his briefing confirms that the action is an effort to "attack" and "invalidate" the "wrongful and fraudulent judgment" entered in Carbajal I .³ But he says his complaint is not subject to the 182-day deadline because he filed an independent equitable action, not a motion under Rule 60(b)(2).

¶17 Rule 60(b) contains a "savings clause," In re Marriage of Gance , 36 P.3d 114, 116 (Colo. App. 2001), so that, in addition to setting aside a judgment on the grounds enumerated in Rule 60(b)(1)-(5), the district court may (1) "entertain an independent action to relieve a party from a judgment, order, or proceeding"; or (2) "set aside a judgment for fraud upon the court," C.R.C.P. 60(b). Neither of these additional grounds is subject to a time limit.

¶18 Carbajal contends that his complaint satisfies the criteria for bringing an independent action to set aside a judgment based on fraud. We disagree.

¶19 An independent equitable action may be brought to attack a facially valid judgment on grounds of fraud. Gance , 36 P.3d at 117. However, relief is available only in "unusual and exceptional circumstances," id. , "to prevent a grave miscarriage of justice," United States v. Beggerly , 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998).⁴

¶20 To prevail, a plaintiff seeking relief must show that (1) the judgment should not, in equity and good conscience, be enforced; (2) he has a meritorious claim in the underlying case that led to the judgment; (3) fraud, accident, or mistake prevented him from pursuing his meritorious claim; (4) he is not at fault;...