This action, challenging a foreclosure, was filed in Sacramento County Superior Court on July 1, 2010, by plaintiff acting in pro per. ECF No. 1-1 at 2. The complaint includes sixteen causes of action: (1) declaratory relief; (2) injunctive relief; (3) a request for a determination of the nature, extent and validity of the lien; (4) breach of the duty of good faith and fair dealing; (5) TILA violations, (6) RESPA violations; (7) violation of California Civil Code §§ 1918.5-1921; (8) violation of California Civil Code § 2932.5; (9) rescission; (10) fraud; (11) unfair and deceptive business practices; (12) breach of fiduciary duty; (13) unjust enrichment; (14) unconscionability; (15) predatory lending in violation of California Business and Professions Code §17200; and (16) quiet title. ECF No. 1-1 at 2-31. It names Sacramento Mortgage, Inc., Gateway Bank, Aurora Loan Services, Chicago Title Company, Quality Loan Service Corp., Mortgage Electronic Registrations Systems and Does 1 through 50 as defendants.
On September 22, 2010, defendants Aurora Loan Services (Aurora) and Mortgage Electronic Registration Services (MERS) removed the case to this court; defendants Quality Loan Service and Chicago Title joined in the notice of removal. ECF Nos. 2, 3. Because plaintiff was representing himself, the case was referred to a magistrate judge. Local Rule 302(c)(21).
On September 29, 2010, defendants Aurora and MERS filed a motion to dismiss for failure to state a claim, supported by a request for judicial notice. ECF Nos. 7-8. After argument, the magistrate judge submitted the motion. See ECF No. 22.
After the matter was submitted, plaintiff obtained counsel, who has now appeared in the case. ECF No. 25, 27. Counsel has filed a motion for leave to file an amended complaint. The proposed amended complaint contains ten causes of action: (1) wrongful foreclosure against all defendants; (2) fraud and fraud in the inducement against Aurora; (3) constructive fraud against Aurora; (4) negligence against Aurora; (5) negligent misrepresentation against Aurora; (6) TILA violations against all defendants; (7) RESPA violations against all defendants; (8) declaratory relief against all defendants; (9) cancellation of instruments; and (10) injunction against all defendants. ECF No. 31-2. The proposed amended complaint names the same defendants.
II. THE MOTION TO DISMISS
A properly filed amended complaint supersedes the original complaint and constitutes a waiver of those claims in the original complaint that are not included in the amended complaint. As a result, when an amended complaint is filed while a motion to dismiss is pending, it generally moots the motion to dismiss. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (amended pleading supersedes the original pleading); Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008), cert. denied sub nom., McDaniel v. Sechrest, __ U.S. __, 130 S.Ct. 243 (2009) (amendment of a complaint constitutes waiver of claims not carried over from previous versions of the complaint); Marty v. Wells Fargo Bank, 2011 WL 1103405, at *1 (E.D Cal. Mar. 22, 2011) (amendment moots motion to dismiss); Mata-Cuellar v. Tennessee Department of Safety, 2010 WL 3122635, at *2 (M.D.Tenn. Aug. 6, 2010) (when the amended complaint is substantially identical to the original complaint, a properly filed amended complaint will not moot a pending motion to dismiss).
These general principles apply when an amended complaint has been properly filed. In this case, however, plaintiff's amended complaint was not filed within twenty-one (21) days of the filing of the motion to dismiss and so requires leave of the court. FED. R. CIV P. 15(a)(1)(B) & 15(a)(2). As a purely practical matter and also a matter of judicial economy, ignoring the amended complaint makes little sense, particularly when that proposed document does not include some of the claims under attack in the motion to dismiss. Accordingly, the court will consider the amended complaint and, to the extent that it contains claims substantially similar to the original complaint, the court will consider the motion to dismiss as to those claims. However, the court finds the motion to dismiss moot as to the following claims, which were not included in the amended complaint and so have been waived: determination of the amount of the lien, Cal. Comm. Code § 9313 (third cause of action); breach of the implied covenant of good faith and fair dealing (fourth cause of action); violation of Cal. Civ. Code §§ 1918.5-1921 (seventh cause of action); rescission (ninth cause of action); unfair and deceptive business practices (eleventh cause of action); breach of fiduciary duty (twelfth cause of action);*fn1 unjust enrichment (thirteenth cause of action); unconscionabily (fourteenth cause of action); predatory lending, Cal. Bus. & Prof. § 17200 (fifteenth cause of action); and quiet title (sixteenth cause of action). In addition, plaintiff has waived fraud claims against all defendants except Aurora.
Defendants have asked the court to take judicial notice of a number of documents, including a deed of trust, an assignment deed of trust, two assignments of the deed of trust, a notice of default, a notice of trustee's sale, and a trustee's deed; some have the Recorder's stamp, while others have reference numbers, reflecting that they have been recorded. ECF No. 8. Plaintiff does not dispute the authenticity of the documents and has attached many of the same documents to the proposed amended complaint. See ECF No. 31-2 at 27-52. As these documents are contained in the public record, they are properly subject to judicial notice. FED. R. EVID. 201(b); see also Grant v. Aurora Loan Services, Inc., 736 F.Supp.2d 1257, 1263-64 (C.D. Cal. 2010). Accordingly, the court takes notice of the documents filed at ECF No. 8-1.
A. Standards For A Motion To Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). A motion to dismiss under this rule may also challenge the sufficiency of fraud allegations under the more particularlized standard of Rule 9(b) of the Federal Rules of Civil Procedure. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter subject to judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003); Parks School of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).
On March 3, 2005, the Sacramento County Recorder's Office recorded a Deed of Trust, encumbering 8633 Marmon Way, Sacramento, as security for a note in the amount of $280,000. ECF No. 8-1 at 2-3. The Deed identified plaintiff as the borrower; Sacramento Mortgage, Inc., as the Lender; Chicago Title Co. as the Trustee and provided that the lender "may appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder. . . ." Id. at 2, 13.
On March 30, 2005, Sacramento Mortgage assigned the beneficial interest in the Deed of Trust to Gateway Bank. ECF No. 8-1 at18-19. This was followed on April 5, 2005, with Gateway's assignment of the beneficial interest in the Deed of Trust to Lehman Brothers Bank. ECF No. 8-1 at 21. On December 7, 2005, Lehman Brothers Bank assigned the beneficial interest in the Deed of Trust, ...