The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING MOTION TO DISMISS SECOND TO EXPUNGE LIS PENDENS AMENDED COMPLAINT AND MOTION
Plaintiff Bernard F. Clark proceeds pro se with an action for damages against Defendants Countrywide Home Loans and Bank of America.
Defendant filed the original complaint in this action in state court on August 24, 2009. (Doc. 1). Defendants removed Plaintiff's action to federal court on November 12, 2009. Plaintiff subsequently filed a first amended complaint ("FAC").
On August 9, 2010, the court issued a Memorandum Decision dismissing the majority of Plaintiff's FAC with prejudice. (Doc. 45). Plaintiff was only given leave to amend his complaint in order to plead a fraud claim and a breach of contract claim. (Id.). Plaintiff filed a second amended complaint ("SAC") on September 9, 2010. (Doc. 47).
Defendants filed a Motion to Dismiss the SAC and Motion to Expunge Lis Pendens on September 27, 2010. (Docs. 50, 52). Plaintiff filed opposition to Defendants' motions on October 25, 2010. (Docs. 55, 56). Defendants filed a reply on November 15, 2010. (Doc. 57).
On or about July 26, 2007, Plaintiff financed the purchase of a residential property located at 12689 Mt. Jefferson Street, Groveland, California ("Subject Property") through a promissory note secured by a deed of trust. The SAC alleges that before loan closing, the lender orally assured Plaintiff that if he was unable to satisfy his mortgage obligation, he would receive a loan modification based on his income.
In 2008, Plaintiff defaulted on his mortgage and called Countrywide Home Loans ("Countrywide") to discuss a possible solution. Countrywide orally told Plaintiff that if he brought his loan current, Countrywide would enter into a loan modification agreement with him. On or about June 16, 2008, Plaintiff borrowed money and brought his loan current, but Countrywide refused to enter into a loan modification agreement.
Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).
The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "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. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). "A court may, however, consider certain materials-documents ...