The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: GRANTING DEFENDANT'S MOTION TO DISMISS (Doc. No. 12)
Presently before the Court is Defendant's motion to dismiss. (Doc. No. 12.) Plaintiff has filed an opposition and Defendant has replied to that opposition. (Doc. Nos. 14 & 16.) Having fully considered the parties' papers and the relevant law, for the reasons set forth herein Defendant's motion is GRANTED.
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, -- US - , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557). As the Supreme Court has made clear, Rule 8 "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id.
Plaintiff Reynaldo Camacho entered into two agreements with Defendant Wachovia in order to refinance the property he owned located at 4938 Roja Drive, Oceanside California, 92057. (Doc. No. 10 (FAC) ¶¶ 1, 7.) Based on these transactions, Plaintiff alleges violations of the Truth In Lending Act (TILA), 15 U.S.C. § 1601, et seq., and California's Unfair Business Practices Act, California Business and Professions Code § 17200. (Id. ¶¶ 9--49.)
I. Defendant's Request for Judicial Notice
At the outset, the Court addresses Defendant's request for judicial notice. (Doc. No. 12-2 (RJN).) Defendant asks this Court to consider thirteen documents in its decision on the motion to dismiss. Although a court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice" when deciding a motion to dismiss, it "may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (citations omitted). Plaintiff has not opposed the consideration of these documents.
In considering these documents, the Court finds that Exhibits A through D are capable of being judicially noticed as undisputed matters of public record. Exhibit E, the Plaintiff's Deed of Trust, is also capable of being judicially noticed as it has been recorded in the official public records of the San Diego Country Recorder's Office and is undisputed. (See also Doc. No. 1, Ex. A at 28--42 (copy of the deed of trust attached to initial complaint).) Exhibit F is Plaintiff's Adjustable Rate Mortgage Note. Consideration of this document is proper because it is referenced in the First Amended Complaint (FAC) but not attached thereto. (See, e.g., FAC ¶ 15.) Exhibits G, H, and M, although not attached to the FAC, were attached to Plaintiff's initial complaint and as such are properly considered. Exhibit K is merely a copy of Appendix J to 12 C.F.R. § 226.12 and is therefore capable of judicial notice. The Court cannot conclude, however, that Exhibits I, J, or L are referenced in the complaint such that they would be properly considered in a Rule 12(b)(6) motion. These exhibits would be more properly considered as evidence in a motion for summary judgment. Therefore, Defendant's request for judicial notice is GRANTED as to Exhibits A through G, H, K, and M, and DENIED as to Exhibits I, J, and L.
II. Truth In Lending Act Claim
Plaintiff's first cause of action is brought pursuant to TILA. (FAC ¶ 9--30.) He makes numerous allegations including that Defendant made misleading interest rate disclosures, (Id. ¶ 15(a)) and was insufficiently clear about whether this loan was at a fixed or variable rate. (Id. ¶ 15(d).) Plaintiff seeks damages "in an amount to be determined at trial," but suggests that this will be "several tens and (sic) thousands, if not hundreds of thousands of dollars." (Id. ¶ 30.) Defendant argues that this claim falls outside of TILA's statute of limitations. (Memo. ISO Motion at 7.) The Court agrees and GRANTS the motion to dismiss as to this claim.
TILA applies a one year statute of limitations to damages claims. 15 U.S.C. § 1640(e). The limitations period begins to run from the date the loan transaction is consummated. King v. California, 784 F.2d 910, 915 (9th Cir. 1986). Plaintiff's mortgages were consummated on May 8, 2006. (FAC ¶ 7.) Therefore, the last date Plaintiff could have brought this claim was May 8, 2007.
In certain circumstances, however, equitable tolling may be available. Id. Specifically, "the limitations period may be suspended "until the borrower discovers or had reasonable opportunity to discover the fraud or ...