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Lopez v. Washington Mutual Bank

April 16, 2010

ANTONIO LOPEZ, PLAINTIFF,
v.
WASHINGTON MUTUAL BANK, F.A. ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Document #10)

BACKGROUND

On September 18, 2009, Plaintiffs filed an action in the Superior Court of California for the County of Kern. The first cause of action alleges a violation of California Civil Code § 1632. The second cause of action alleges a violation of California Business and Professions Code § 17200 based on Defendants' fraudulent business practices. The third cause of action alleges a violation of California Business and Professions Code § 17200 based on violations of 15 U.S.C. § 1601. The fourth cause of action alleges a violation of California Business and Professions Code § 17200 based on violations of California Financial Code § 22302. The fifth cause of action alleges fraudulent omission. The sixth cause of action requests injunctive relief. The seventh cause of action alleges breach of the covenant of good faith and failure dealing. The eighth cause of action alleges unjust enrichment. The ninth cause of action alleges failure to provide accounting. The tenth cause of action alleges negligence. The eleventh cause of action alleges breach of fiduciary duty. On October 20, 2009, Defendants removed the complaint to this court.

On October 27, 2009, Defendants filed a motion to dismiss. Defendants contends that none of the causes of action in the complaint can be asserted against Defendants, and as such, the complaint must be dismissed.

Plaintiff did not file an opposition to Defendants' motion.

On January 25, 2010, Defendants filed a reply brief.

LEGAL STANDARD

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

In reviewing a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev.

Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although legal conclusions may provide the framework of a complaint, they are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . ..

Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where 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 shown -- that the pleader is entitled to relief.

Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).

JUDICIAL NOTICE

In deciding whether to dismiss a claim under Rule 12(b)(6), the court is generally limited to reviewing only the complaint, but the court may review materials which are properly submitted as part of the complaint and the court may take judicial notice of public records outside the pleadings. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996);MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Further, under the "incorporation by reference" doctrine, courts may review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lapidus v. Hecht, 232 F.3d 679, 682 (9th Cir. 2000). The "incorporation by reference" doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel, 393 F.3d at 1076 (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)).

Defendants request that the court take judicial notice of the deed of trust and other recorded documents concerning the property at issue in this action and the property's title. "In deciding whether to dismiss a claim under Fed.R.Civ.P. 12(b)(6), a court may look beyond plaintiff's complaint to matters of public record." Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir. 1995). Thus, the court will take judicial notice of the documents provided by Defendants.

FACTS

A. Complaint's Alleged Facts

The complaint alleges that Defendants sell, procure, and facilitate a variety of home loans. The complaint alleges that the adjustable rate mortgage ("ARM") is the type of loan that is the subject of the complaint.

The complaint alleges that Defendants failed to disclose pertinent information in a clear and conspicuous manner to Plaintiff, in writing, as required by law when he obtained a loan. The complaint alleges that Defendants failed to inform Plaintiff that he could not actually qualify for the loan.

The complaint alleges that Defendants engaged in unlawful, fraudulent, and unfair business acts and practices and failed to provide Plaintiff pertinent information required by law.

B. Facts of Which the Court Takes Judicial Notice

Plaintiff and his spouse, Claudia Villanueva, recorded a Deed of Trust with the Kern County Recorder's Office on the real property that is the subject of this dispute on or about September 28, 2006, as instrument number 0206240380. The real property is located at 11217 Baron Avenue, Bakersfield, CA 93312 ("Subject Property").

Plaintiff and Ms. Villanueva obtained a loan in the sum of $279,200.00 ("Loan") in connection with the Subject Property. The Loan was secured by a Deed of Trust ("DOT") encumbering the Subject Property that was recorded on or about September 28, 2006, with the Kern County Recorder's Office as instrument number 0206240318. The DOT identifies Plaintiff and Ms. Villanueva as the trustors, Jackie Miller as the trustee, Suntrust Mortgage ("Suntrust") as the lender and Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary.

On April 3, 2009, an Assignment of the Deed of Trust ("Assignment") was recorded with the Kern County Recorder's Office as instrument number 0209047511. The Assignment assigns and transfers to Deutsche Bank National Trust CO as trustee for Long Beach ...


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