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Federal Deposit Insurance Corporation As Receiver For Indymac Bank, F.S.B v. Gb Escrow

September 28, 2011


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge

Order DENYING Defendant's Motion to Dismiss, or in the alternative, Motion to Strike [10] [Filed 09/02/11]


Pending before the Court is Defendant Carina Pollard's ("Defendant") September 2, 2011 Motion to Dismiss, or in the alternative, Motion to Strike. (Dkt. No. 10.) Plaintiff, Federal Deposit Insurance Corporation, ("Plaintiff"), filed its Opposition on September 12, 2011, (Dkt. No. 16), to which Defendant filed a Reply on October 3, 2011 (Dkt. No. 17). After careful consideration of the papers filed in support of and in opposition to the instant Motion, for the reasons discussed below, Defendant's Motion is DENIED.


Defendant prepares appraisals for mortgage brokers, lenders, and others in the mortgage industry. (Compl. ¶ 6.) Plaintiff alleges that in 2007, Defendant prepared appraisal reports knowing that the appraisals would be used by lenders, such as IndyMac Bank, FSB, for mortgage lending purposes. (Compl. ¶ 6.) Defendant allegedly entered into a contract to provide an appraisal for the property located at 2254 Bancroft Avenue, Los Angeles, California 90039, and allegedly intended for IndyMac to be a beneficiary of that contract. (Compl. ¶¶ 9, 31-33.)

Plaintiff pleads the appraisal was supposed to comply with regulatory requirements established for transactions funded through federally regulated financial institutions. (Compl. ¶¶ 8-9). Plaintiff asserts that Defendant did not follow the proper guidelines, and thus made mistakes such as failing to disclose and analyze the Property's listing history, not conforming to the Uniform Standards of Professional Appraisal Practice, and mis-characterizing the property. (Compl. ¶¶ 11-12).

On June 24, 2011, Plaintiff filed its Complaint seeking damages from Defendant for negligent misrepresentation and breach of contract - third-party beneficiary . On September 2, 2011, Defendant filed a Motion to Dismiss, or in the alternative, Motion to Strike, (Dkt. No. 10), the claims of negligent misrepresentation and breach of contract -third-party beneficiary.


"To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, to overcome a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, but it asks for 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 of relief." Id. (internal citation and quotation marks omitted).

When considering a 12(b)(6) motion, a court is generally limited to considering material within the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citing Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) and Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). 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).

Federal Rule of Civil Procedure 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Impertinent allegations are those that are not responsive or relevant to issues involved in the action and which could not be admitted as evidence in the litigation" and an "immaterial allegation is that which has no essential or important relationship to the claim for relief or defenses being pleaded." Jackson v. Bd. of Equalization, No. CIV S-09-1387 (DAD), 2011 WL 3814537, at *14-15 (E.D. Cal. Aug. 26, 2011 (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, 984 F.2d at 1527 (9th Cir. 1993). A court can also grant a motion to strike for the purpose of streamlining the ultimate resolution of the action and focusing the jury's attention on the real issues in the case. Fantasy, 984 F. 2d at 1528.

Motions to strike are generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic. Cal. Dept. of Toxic Substances Control v. Alco Pacific, Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). When ruling on a motion to strike, the Court must view the challenged pleadings in the light most favorable to the pleader. Lazar v. Trans Union, L.L.C., 195 F.R.D. 665, 669 (C.D. Cal. 2000). Due to the fact that motions to strike a defense are disfavored, they "will not be granted if the insufficiency of the defense is not clearly apparent." 5C Wright & Miller § 1381, at 428. "To show that a defense is insufficient, the moving party must demonstrate that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed." Id at 1032. (quoting Securities & Exchange Comm'n v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995).



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