ORDER AND FINDINGS AND RECOMMENDATIONS
This case came before the court on April 3, 2009, for hearing of defendant's motion to strike plaintiff's punitive damages claim pursuant to Federal Rule of Civil Procedure 12(f) (Doc. No. 8) and defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure 9 and 12(b)(6) (Doc. No. 9).*fn1 Plaintiff George Thomas Wilkerson, proceeding pro se, appeared on his own behalf. Stephen Goostrey, Esq. appeared telephonically for defendant World Savings Bank. Upon consideration of all written materials filed in connection with the motion, the parties' arguments at the hearing, and the entire file, the undersigned recommends that defendant's motions be granted and this action be dismissed.
Plaintiff filed his complaint with an application to proceed in forma pauperis on September 15, 2008. The undersigned granted plaintiff's in forma pauperis application and authorized service of the complaint on the defendant. Defendant filed its motions to strike and dismiss on January 9, 2009. Plaintiff eventually filed his written opposition to the motions on March 24, 2009, stating only that he had "stated any and all claims for which relief can be granted against this defendant in his complaint." (Doc. No. 15 at 1.) Defendant filed a timely reply, in which it correctly noted that plaintiff's belated response to the motions amounted to no opposition. (Doc. No. 19 at 2.)
In his brief three-page complaint plaintiff alleges in conclusory fashion that defendant World Savings injured him by: (1) placing him into an adjustable rate mortgage loan without regard for his ability to repay the loan; (2) excessively impounding interest payments; (3) refusing to accept loan payments after plaintiff filed for Chapter 13 bankruptcy; (4) refusing to provide an accounting for missed loan payments; (5) overstating the unpaid balance on the loan; (6) failing to give adequate notice of foreclosure and the trustee sale on February 16, 2001; (7) providing an inadequate appraisal report with respect to plaintiff's home in 1999; and (8) taking and selling plaintiff's home in bad faith and with malice. (Compl. at 1-2.) In his complaint, plaintiff seeks compensatory and punitive damages. (Id. at 3.)
Defendant seeks dismissal of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on the following grounds: (a) plaintiff lacks standing to prosecute his claims because he failed to list them in his Chapter 13 bankruptcy filed August 27, 1996; (b) plaintiff's claims are time-barred; (c) plaintiff's vague claims are preempted by the Home Owners Loan Act (HOLA) (15 U.S.C. § 1461, et. seq. and its implementing regulations found at 12 C.F.R. § 560.2); (d) plaintiff fails to state any actionable claim for relief; and (e) plaintiff's vague allegations of fraud fail to meet the strict pleading requirements of Rule 9 of the Federal Rules of Civil Procedure. In addition, in a separate motion, defendant has moved to strike plaintiff's punitive damages claim on the grounds that the complaint's allegations fail to plead sufficient facts in support of a claim for punitive damages as required by California Civil Code § 3294(a-c).
As noted above, in his written opposition to the motions plaintiff states only that he has "stated any and all claims for which relief can be granted against this defendant in his complaint." (Doc. No. 15 at 1.)
LEGAL STANDARDS APPLICABLE TO DEFENDANT'S MOTION
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, , 127 S.Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
Federal Rule of Civil Procedure 9, titled "Pleading Special Matters," provides as follows with regard to claims of "Fraud, Mistake, Condition of the Mind":
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
Fed. R. Civ. P. 9(b). "Rule 9(b) serves not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also 'to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.'" Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996)). Accordingly, pursuant to Rule 9(b), a plaintiff at a minimum must plead evidentiary facts such as the time, place, persons, statements and explanations of why allegedly misleading statements are misleading. ...