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Randall Tyson v. Wells Fargo Bank N.A. et al

May 30, 2012

RANDALL TYSON,
PLAINTIFF,
v.
WELLS FARGO BANK N.A. ET AL.,
DEFENDANT.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER DENYING EX PARTE REQUEST FOR AN EXTENSION OF TIME TO RESPOND TO DEFENDANTS' MOTIONS TO DISMISS; AND [Doc. No. 15]

GRANTING DEFENDANTS' MOTIONS TO DISMISS [Doc Nos. 5, 8, 11]

BACKGROUND

This action arises out of a secured loan made on February 22, 2006, by World Savings Bank, FSB ("World Savings") to Plaintiff Randall Tyson, and his wife, Gail Tyson to finance the purchase of real property located at 3535 Pine Avenue, in Long Beach, California 90807. [Request for Judicial Notice "RJN", Doc. No. 5-3, Exh. A.] Plaintiff defaulted on the loan and as a result, Wells Fargo Bank, N.A., as the successor to World Savings, initiated foreclosure proceedings and the property was subsequently sold at foreclosure sale. [RJN, Exhs. E, F, N.]

On May 31, 2011, Plaintiff commenced a civil action in the Los Angeles County Superior Court, Tyson v. World Savings Bank, FSB, et al., NC056109 challenging the foreclosure of his property. [RJN, Exh. H.] The action was removed to the United States District Court, Central District of California, and subsequently remanded. On January 10, 2012, the Superior Court sustained Wells Fargo's demurrers to all but one of Plaintiff's causes of action and granted leave to amend solely with respect to his cause of action for promissory estoppel. [RJN, Exh. I.] On February 9, 2012, Plaintiff filed a First Amended Complaint ("FAC") [RJN, Exh. J] and Wells Fargo demurrered to the FAC. [RJN. Exh. K.] Plaintiff did not oppose Wells Fargo's demurrer and on March 15, 2012, the Superior Court sustained Wells Fargo's demurrer to the FAC without leave to amend. [RJN, Exh. L.]

On March 9, 2012, prior to the superior court's hearing on Wells Fargo's demurrer, Plaintiff, proceeding pro se, filed this action against Defendants Wells Fargo Bank N.A. ("Wells Fargo"), NDEx West LLC, Ross M. Klein, O. Andrew Wheaton, and Robert T. Lane. The complaint alleges causes of action for: (1) breach of contract, impaired covenant of good faith and fair dealing; (2) fraud and misrepresentation; (3) usury and misrepresentation; (4) wrongful foreclosure; and (5) intentional infliction of emotional distress. Plaintiff's allegations arise out of the loan transaction and the subsequent superior court foreclosure action.

On March 30, 2012, Wells Fargo and Wheaton filed a motion to dismiss Plaintiff's complaint [Doc. No. 5] and on April 3, NDEx West LLC joined the motion. [Doc. No. 6.] On April 5, 2012, Lane filed a motion to dismiss. [Doc. No. 8.] Both motions were set for hearing on May 21, 2012. On May 2, 2012, Klein filed a motion to dismiss, which is set for hearing on July 16, 2012. [Doc. No. 11.] Plaintiff did not file an opposition to Wells Fargo or Lane's motions to dismiss by May 7, 2012 as required by Civil Local Rule 7.1.e.2. On May 15, 2012, the Court took the unopposed motions under submission pursuant to Civil Local Rule 7.1.d.1. [Doc. No. 13.]

On May 22, 2012, Plaintiff filed the pending ex parte request for additional time to respond to Defendants' motions to dismiss. [Doc. No. 15.] On May 24, 2012, Defendant Wells Fargo and Wheaton filed an opposition to the ex parte motion. [Doc. No. 16.]

REQUEST FOR JUDICIAL NOTICE

Wells Fargo filed a Request for Judicial Notice concurrently with its motion to dismiss requesting the Court take judicial notice of certain public documents related to the property and Plaintiff's prior lawsuit. [Doc. No. 5-3.] A district court may take notice of facts not subject to reasonable dispute that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED.R.EVID. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). This includes matters of public record found outside of the pleadings, such as court records, orders, and other documents related to the proceeding. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

The public documents relating to the subject property submitted by Wells Fargo are not subject to reasonable dispute and are proper subjects of judicial notice. Courts have taken judicial notice of nearly identical documents. e.g. Rodriguez v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 145174 (N.D. Cal. 2011) (taking judicial notice of deed of trust, notice of default and notice of trustee's sale). Likewise, the Court may take judicial notice of the court documents pertaining to Plaintiff's superior court action because they are matters of public record and are related to the proceeding. Thus, to the extent that the Court references such documents herein, Wells Fargo's Request for Judicial Notice is GRANTED.

DISCUSSION

1) Ex Parte Motion for Extension of Time to Respond

Plaintiff seeks an extension of time to respond to Defendants motions to dismiss.*fn1 Upon review of Plaintiff's ex parte motion and Defendants' opposition, the Court finds the motion is untimely and Plaintiff has not demonstrated good cause for an extension of time. "Although plaintiff is appearing without benefit of counsel, . . . [he] must comply with the Federal Rules of Civil Procedure." Virginia Reeder v. John Knapik DBA K/Mont Construction, 2007 U.S. Dist. LEXIS 40675 at *7 (S.D. Cal. 2007). Likewise, Plaintiff must also comply with the deadlines set forth in the Civil Local Rules. Clearly this Plaintiff has prior experience with the judicial system, as he litigated his prior action in multiple jurisdictions. Thus, his pro se status does not afford him the normal leniency that is often afforded to pro ...


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