The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER (1) GRANTING ONEWEST BANK, F.S.B.'S MOTION TO DISMISS (2) GRANTING PLAINTIFF'S MOTION TO SUBSTITUTE ATTORNEY
Presently before the Court are Defendant OneWest Bank, F.S.B.'s ("OneWest") motion to dismiss pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), [Doc. No. 16], and Plaintiff's motion to substitute her attorney of record. [Doc. No. 25.] Both motions are suitable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS both motions.
The factual background of this case, as described in Plaintiff's Verified Complaint, is fully set forth in the Court's December 23, 2010, order and will not be repeated herein.
On September 13, 2010, Plaintiff, proceeding pro se but also an attorney licensed in the State of California, filed a Complaint against Defendant OneWest, the purported current beneficiary of the loan, and Defendant Quality Loan, the purported current trustee.*fn1 [Doc. No. 1.] The Complaint included a motion for a temporary restraining order and preliminary injunction, requesting the Court to enjoin the scheduled foreclosure sale, which the Court denied. [Doc. No. 4.] The Court granted OneWest's motion to dismiss, dismissing some of Plaintiff's claims with prejudice and others with leave to amend. [Doc. No. 14.]
Plaintiff subsequently filed her FAC, alleging ten causes of action: (1) Wrongful Foreclosure, (2) Quiet Title, (3) Violation of the Real Estate Settlement Procedures Act ("RESPA"), (4) Fraud, (5) Violation of California's Unfair Competition Law ("UCL"), (6) Rescission, (7) Violation of the Truth in Lending Act ("TILA"), (8) Violation of California Civil Code § 2923.5, (9) Injunctive Relief, and (10) Accounting. [Doc. No. 15.] OneWest now moves to dismiss the FAC. [Doc. No. 16.]
Plaintiff has also filed related proceedings in Bankruptcy Court. She filed a Chapter 13 proceeding on September 16, 2010, which is currently pending.*fn2 See Ch. 13 Voluntary Pet., In re , B.R. Case No. 10-16454 (S.D. Cal. B.R. Sept. 16, 2010). On January 22, 2011, Defendant also filed an adversarial bankruptcy proceeding against OneWest regarding the same subject matter as this action. See Complaint, Beal v. OneWest Bank, FSB, B.R. Adversary Case No. 11-90028-LT (S.D. Cal. B.R. Jan. 22, 2011). OneWest also moved to dismiss that proceeding; the Bankruptcy Court is currently scheduled to hear that motion on July 12, 2011.
PLAINTIFF'S MOTION TO SUBSTITUTE ATTORNEY
On March 7, 2011, after filing an opposition to OneWest's motion, Plaintiff filed an ex parte motion to substitute Mr. Gary L. Harre as her attorney of record in place of representing herself. [Doc. No. 25.] Mr. Harre consented to the substitution. The Court GRANTS Plaintiffs' motion.
i.FED.R.CIV. P. 12 (b)(6)
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R.. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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." Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
However, "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 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept "legal conclusions" as true. Iqbal, 129 S. Ct. at 1949. In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that 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). "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.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at Additionally, defenses based on relevant statutes of limitations may be raised on a Rule 12(b)(6) motion to dismiss when the statute's running is apparent on the face of the complaint. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).
For a Rule 12(b)(6) motion, a court generally cannot consider material outside the complaint.
Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). A court may, however, consider exhibits submitted with the complaint. Van Winkle v. Allstate Ins. Co., 290 F. Supp. 2d 1158, 1162 n.2 (C.D. Cal. 2003). In addition, a "court may consider evidence on which the complaint 'necessarily relies' if:
(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A 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)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A court may disregard allegations in the complaint if they are contradicted by facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Thus, this Court may consider pertinent loan and foreclosure documents submitted by Plaintiff and Defendant OneWest.
Fraud claims must be pleaded to satisfy the particularity requirements of Rule 9(b). A claim of fraud must have the following elements: "(a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage." In re Estate of Young, 160 Cal. App. 4th 62, 79 (2008) (quoting Lazar v. Superior Court, 12 Cal. 4th 631, 638 (1996) (internal quotation marks omitted)). Federal Rule of Civil Procedure 9(b) requires that each of these elements be pleaded with particularity. The Ninth Circuit has "interpreted Rule 9(b) to mean that the pleader must state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation." Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392-93 (9th Cir. 1988). Averments of fraud must be accompanied by the "who, what, when, where, and how" of the misconduct charged. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). Additionally, "the plaintiff must plead facts explaining why the statement was false when it was made." Smith v. Allstate Ins. Co., 160 F. Supp. 2d 1150, 1152 (S.D. Cal. 2001) (citation omitted);
In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994) (en banc) (superseded by statute on other grounds).