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Jacob Winding Dba Top To Bottom Cleaning Service v. Ndex West

February 22, 2011

JACOB WINDING DBA TOP TO BOTTOM CLEANING SERVICE, DLB PLAINTIFF,
v.
NDEX WEST, LLC AS TRUSTEE; NOTICE WELLS FARGO BANK, N.A., AND DOES 1 THROUGH 100, INCLUSIVE,
DEFENDANTS



ORDER ON DEFENDANT'S MOTION TO DISMISS, MOTION TO STRIKE AND REQUEST FOR JUDICIAL Doc. #'s 6, 7 and 8

This is an action for monetary damages, declaratory and injunctive relief and to quiet title by Jacob Winding dba Top to Bottom Cleaning Service ("Plaintiff") against defendants, NDEX, LLC, and Wells Fargo Bank, N.A. (Collectively, "Defendants"). The action arises out of the foreclosure and sale of a parcel of land located in Salida in Stanislaus County. In the complaint, Plaintiff alleges claims for relief for wrongful foreclosure, quiet title, tortious interference with contractual relations, conversion, infliction of emotional distress and seeks injunctive and declaratory relief. In the instant set of motions, Defendants seek to strike Plaintiff's claims for punitive damages and seek to dismiss each of Plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants also request the court take judicial notice as to a number of documents. The parties do not dispute that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332. Venue is proper in this court.

JUDICIAL NOTICE

Defendants' request for judicial notice, Document No. 8, was filed concurrently with their motion to dismiss, on November 4, 2010. The request for judicial notice requests that the court take judicial notice of the following documents, copies of which are attached as exhibits to the request:

1. Deed of Trust recorded in the official records of the Stanislaus County Recorder on April 26, 2007, as Document No. 2007-0052948-00. Attached as Exhibit A.

2. Certificate of Corporate Existence dated April 21, 2006, issued by the Office of Thrift Supervision, Department of the Treasury ("OTS"). Exhibit B.

3. Letter dated November 19, 2007, issued by the OTS. Exhibit C. 4. Charter of Wachovia Mortgage, FSB, dated December 31, 2007, reflecting in Section 4 that it is subject to the Home Owners' Loan Act ("HOLA"), 12 U.S.C. § 1461, et seq., and the OTS. Exhibit D.

5. Official Certification of the Comptroller of the Currency ("OCC") stating that effective November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank Southwest, N.A., which then merged with and into Wells Fargo Bank, N.A. Exhibit E.

6. Deed of Trust recorded in the official records of the Stanislaus County Recorder on August 18, 2009, as Document No. 2009-0081520-00. Exhibit F.

7. Quitclaim Deed recorded in the official records of the Stanislaus County Recorder on December 7, 2009, as Document No. 2009-0116659-00. Exhibit G.

8. Notice of Default recorded in the official records of the Stanislaus County Recorder on March 24, 2010, as Document No. 2010-0026825-00. Exhibit H.

9. Notice of Trustee's Sale recorded in the official records of the Stanislaus County Recorder on June 25, 2010, as Document No. 2010-0055740-00. Exhibit H.

10. Trustee's Deed Upon Sale recorded in the official records of the Stanislaus County Recorder on September 30, 2010, as Document No. 2010-0088286-00. Exhibit J. Doc. # 8 at 2:1-3:4.

Defendants contend Exhibits A, F, G, H, I and J are appropriate for judicial notice "because they are true and correct copies of recorded documents, whose authenticity is capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably be questioned." Doc. # 8 at 3:5-8. Pursuant to Rule 201(b) of the Federal Rules of Evidence, an adjudicative fact may be judicially noticed if it is "not subject to reasonable dispute in that it 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 questioned." Id. Therefore, "a court 'may take judicial notice of matters of public record, including duly recorded documents, and court records available to the public through the Pacer system via the internet.' [Citations.]" Peviani v. Hostess Brands, Inc., - F.Supp.2d -, 2010 WL 4553510 (C.D. Cal. 2010) at *3 (citing C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1123, 1138 (E.D.Cal.2009); see also Holder v. Holder, 305 F.3d 854, 866 (9th Cir.2002)).

The court has examined the documents supplied as Exhibits A, F, G, H, I and J to Defendants' request for judicial notice and finds these documents appear to be, as Defendants' allege, documents duly documented by the Stanislaus County Recorder. The court also notes Plaintiff has filed no opposition to Defendants' request for judicial notice. Having found that Exhibits A, F, G, H, I and J are documents duly recorded and are therefore properly documents for judicial notice, the court will judicially notice those documents.

Defendants also contend that judicial notice is appropriate for Exhibits B, C, D, and E because those documents reflect official acts of executive departments of the United States. The California Evidence Code specifically provides for judicial notice documents that reflect the acts of executive agencies of the United States government pursuant to Cal. Evidence Code section 452, subdivision (c), which permits judicial notice to be taken of "[o]fficial actsof the legislative, executive or judicial departments ... of any state of the United States." Ordlock v. Franchise Tax Bd., 38 Cal.4th 897, 912 n.8 (2006) (quoting Cal. Evid. Code § 452(c)). It has been the practice of district courts in California, in cases such as the one at bar, to follow the California Evidence Code by judicially noticing official acts of the OTS, the Comptroller of the Currency, and the FDIC, particularly where the acts in question reflect official recognition of existence, name change or the status of the financial organization with respect to federal regulation. See, e.g., Coppes v. Wachovia Mortgage Corp., 2010 WL 4483817 (E.D. Cal. 2010) at *2-*3 (noting that documents reflecting change of bank name and status were properly judicially noticed and providing case examples from California District Courts).

The court has examined the documents submitted as Exhibits B, C, D, and E to Defendants' request for judicial notice and finds they appear to be, as Defendants allege, letters and other documents memorializing the official acts of the executive branch of the federal government. Again, Defendants' request for judicial notice is not opposed. For the reasons set forth in Coppes and the case authority cited therein, the court finds that judicial notice of Exhibits B, C, D, and E is appropriate.

Having determined that each of the Exhibits submitted by Defendants in their request for judicial notice are each properly subject to judicial notice, the court will grant Defendants' request for judicial notice in its entirety.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual background presented here is drawn from the complaint and from the documents included as Exhibits to Defendants' request for judicial notice. The facts underlying this action and presented here are not disputed except as noted.

At issue in this action is a piece of property located in Salida in Stanislaus County (hereinafter, the "Property"). On April 13, 2007, a first trust deed (the "2007 Trust Deed") was executed by the owners, Warner and Iris Bowers, ("Owners") using the Property to secure a loan in the amount of $255,500.00 (the "2007 Loan"). The lender was World Savings Bank, FSB. World Savings Bank, FSB, changed its name to Wachovia Mortgage, FSB on December 31, 2007. As noted by Defendants' Exhibit E, the Comptroller of the Currency certified the change of Wachovia Mortgage to Wells Fargo Bank Southwest and the merger of Wells Fargo Bank, Southwest with and into Wells Fargo Bank, N.A. on November 1, 2009.

On August 19, 2009, a subsequent Deed of Trust was recorded on the Property securing a loan of $80,000.00 (the "2009 Trust Deed"). Plaintiff Jacob Winding was named as Trustee of the 2009 Trust Deed and TTB Services, Inc. was named beneficiary. On December 7, 2009, the owner Warner Bowers transferred his interest in the Property via quitclaim deed to TTB Services, Inc.

Although Plaintiff's complaint does not allege anything with regard to default on the 2007 Loan, Defendant's allegation that the Loan fell delinquent sometime between 2009 and 2010 is not disputed. Plaintiff also does not dispute that Wells Fargo ordered a Notice of default on March 24, 2010, and a Notice of Sale on June 25, 2010. The parties both allege that a trustee's sale was conducted on September 22, 2010. The parties agree that Wells Fargo took title to the Property at the trustee's sale pursuant to its credit bid.

The complaint in this action was originally filed in Stanislaus County Superior Court on September 23, 2010. At the time of filing, Plaintiff was representing himself in pro per. Defendants removed the action to this court on September 28, 2010. The complaint alleges claims for: (1) wrongful foreclosure, (2) quiet title, (3) tortious interference with contractual relations, (4) conversion, (5) intentional infliction of emotional distress, and (6) declaratory and injunctive relief. Plaintiff's complaint also requests punitive or exemplary damages with respect to Plaintiff's first, third, fourth and fifth claims for relief.

The instant request for judicial notice and motions for summary judgment and to strike punitive damages claims were all filed on November 4, 2010. Plaintiff filed oppositionto the motions to dismiss and the motion to strike on January 10, 2011. Plaintiff was represented by counsel as of the time his opposition briefs were filed. Defendants' reply briefs were filed on January 14, 2011. On January 20, 2011, the court vacated the scheduled hearing date and took the matter under submission as of January 24, 2011.

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("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"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").

The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume ...


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