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Steven Grill v. Bac Home Loans Servicing Lp

January 13, 2011


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on the motions of defendant BAC Home Loans Servicing LP ("BAC") to dismiss and to strike plaintiff Steven Grill's ("plaintiff") Complaint pursuant to Federal Rules of Procedure 12(b)(6) and 12(f). Plaintiff opposes BAC's motions. For the reasons set forth below,*fn1 BAC's motion to dismiss is GRANTED.*fn2


Plaintiff brought this action against BAC for conduct arising out of a Home Affordable Modification Trial Period Plan (the "Plan") that BAC sent plaintiff on or about October 22, 2009. (Compl., filed Oct. 12, 2010 [Docket # 1], ¶ 65.) Plaintiff alleges that BAC failed "to honor its agreement with [p]laintiff to modify his mortgage and prevent foreclosure." (Id. ¶ 1)

Plaintiff claims the terms of the Plan state that if he met all the requirements listed, BAC was obligated to provide him with a modification of his current mortgage loan. (Id. ¶ 3.) He alleges that he met the terms of the Plan "by submitting the required documentation and making payments." (Id.) Plaintiff alleges that "[d]espite his efforts, [BAC] has ignored its contractual obligation to permanently modify his loan." (Id.) Plaintiff alleges that "[BAC's] actions thwart the purpose of the [United States Treasury's Home Affordable Modification Program ("HAMP")] and are illegal under California law. (Id. at 4.)

Plaintiff's Complaint sets forth six causes of action: (1) breach of contract based on the Plan; (2) breach of the implied covenant of good faith and fair dealing; (3) breach of contract based on plaintiff's status as an intended third-party beneficiary to the Servicer Participation Agreement ("SPA"); (4) promissory estoppel; (5) violation of the Rosenthal Fair Debt Collection Practices Act; and (6) unfair and fraudulent business practices in violation of the California Unfair Competition Law, California Business & Professions Code Sections 17200 et seq..


Under Federal Rule of Civil Procedure 8(a), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

On a motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege "'specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.

Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).


A. Defendant's Exhibits

Rule 201 permits a court to take judicial notice of an adjudicative fact "not subject to reasonable dispute" because the fact is either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be question." Fed. R. Evid. 201(b). The court can take judicial notice of matters of public record, such as pleadings in another action and records and reports of administrative bodies. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988).

"Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). "The defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id. The policy concern underlying the rule is to prevent plaintiffs "from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998).

BAC requests the court to take judicial notice of various documents, including (1) the Note signed by plaintiff (Ex. A), (2) the original deed of trust signed by plaintiff (Ex. B), and (3) the Home Affordable Modification Trial Period Plan (Ex. C). Plaintiff's claims for relief depend upon, and/or repeatedly refer to, information contained in Exhibit C. (See, e.g., Compl. ¶¶ 3, 65, 66, 75, 76, 77, 79, 80, 82, 83, 97, 98, 99, 110, 114, Prayer ¶ 5). In addition, Exhibit A and Exhibit B are matters of public record. Because these exhibits form the basis of several of plaintiff's claims for relief, the court takes judicial notice of these documents. Accordingly, the ...

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