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Richard & Deeana Beigel; Florante I. v. Deutsche Bank Ag; Deutsche Bank National Trust Co.; Deutsche Bank

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


February 21, 2012

RICHARD & DEEANA BEIGEL; FLORANTE I. PENA, RICHARD & DEBRA MCARTOR; ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
DEUTSCHE BANK AG; DEUTSCHE BANK NATIONAL TRUST CO.; DEUTSCHE BANK TRUST CO. AMERICAS; EXECUTIVE TRUSTEE SERVICES (D/B/A ETS SERVICES LLC);
QUALITY LOAN SERVICE CORP., A CALIFORNIA CORPORATION; DSL SERVICE COMPANY, AND DOES 1 THROUGH 1000, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Hon. George H. WU United States District Court Judge

MADE JS-6

ORDER AND JUDGMENT DISMISSING COMPLAINT WITH PREJUDICE

Complaint filed: August 11, 2011

This action came on for hearing before the Court. The issues have been heard and a decision has been rendered.

On January 12, 2012, this Court granted defendants' motion to dismiss. Concluding that California Civil Code section 2932.5 does not apply to deeds of trust, the Court dismissed two of plaintiff's claims with prejudice. Despite cautioning plaintiff that his other claims should "very likely" also be dismissed with prejudice, the Court permitted plaintiff leave to amend as to three of his claims, based on counsel's representation that plaintiff desired to amend his complaint. (See Civil Minutes-General, dated January 12, 2012 [Docket No. 28], Tentative Ruling at 7.) The Court directed plaintiff to file his amended pleading by February 1, 2012.

Plaintiff did not file an amended pleading by February 1, 2012. Instead, on February 14, 2012, plaintiff filed a Request for Judgment stating that he "will not file an amended complaint in this action." (Plaintiff's Request for Judgment, dated February 14, 2012 [Docket No. 32].) He also "request[ed] that the court issue the final Judgment based upon its order dismissing plaintiffs' causes of action [Docket No. 28]." (Id.)

By failing to amend his complaint and requesting final Judgment based on the dismissal of all his claims, Plaintiff concedes he cannot cure the complaint's defects consistent with this Court's order that section 2932.5 does not apply to deeds of trust. Plaintiff's failure to amend warrants dismissal of all claims with prejudice. See, e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (affirming dismissal with prejudice where plaintiff failed to timely amend complaint and factors such as "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; [and] (3) the risk of prejudice to the defendants" strongly supported dismissal with prejudice) (citations omitted); see also Civ. L.R. 7-12 (failure to file required papers may be deemed consent to dismissal). The same factors strongly support and warrant dismissal with prejudice as to all claims here.

Moreover, a recent decision of the Ninth Circuit further underscores that section 2932.5 does not apply to deeds of trust and that dismissal of all claims here should be with prejudice. See Caballero v. Bank of Am., No. 10-17818 (9th Cir. Feb. 15, 2012), Slip. Op. at 2 ("The District Court correctly held that California Civil Code section 2932.5 does not apply to deeds of trust."); see also Caballero v. Bank of Am., No. 5:10-cv-02973-LHK [Docket No. 28], Stipulation for Entry of Order of Dismissal of All Causes of Action and Order Dismissing Action, dated November 12, 2010 (granting dismissal with prejudice upon plaintiff's stipulated election to not amend his Cal. Bus. & Prof. Code § 17200 claim in the face of an order dismissing claims premised on violation of Cal. Civil Code § 2932.5 with prejudice upon holding that § 2932.5 does not apply to deeds of trust).

For the reasons set forth in this Court's Civil Minutes and Tentative Ruling, dated January 12, 2012 [Docket No. 28] and herein, IT IS HEREBY ORDERED AND ADJUDGED that plaintiff's complaint is DISMISSED in its entirety without leave to amend.

It is further ORDERED that JUDGMENT OF DISMISSAL WITH PREJUDICE AS TO ALL CLAIMS is hereby granted and the Clerk of the Court is to enter judgment accordingly.

20120221

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