ORDER GRANTING DEFENDANTS' MOTION TO DISMISS, DENYING
DEFENDANTS' MOTION TO STRIKE, AND DENYING PLAINTIFF'S EX
PARTE APPLICATION TO REMAND
This matter comes before the Court on Defendant Wells Fargo Bank, N.A. ("Wells Fargo") and Defendant NDeX West, LLC's ("NDeX") (collectively "Defendants") Motion to Dismiss (Doc. #13) Plaintiff Rowena Shaddox's ("Plaintiff") First Amended Complaint (Doc. #1, Exhibit A) ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants also move to strike (Doc. #10) portions of Plaintiff's FAC. Plaintiff opposes both motions (Docs. #15, 16).*fn1
While these motions were pending, Plaintiff filed an "Ex Parte Application to Remand," (Doc. #23), to which Defendant Wells Fargo filed a response (Doc. #24).
For the reasons set forth below, Defendants' Motion to Dismiss 3 is GRANTED, Defendants' Motion to Strike is DENIED, and Plaintiff's 4 Ex Parte Application is DENIED. 5 6
I. FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of the non-judicial foreclosure of real 8 property located at 585 Blarney Circle in Vacaville, California 9 ("Subject Property"). See Plaintiff's First Amended Complaint, Doc. #1, Exh. A ("FAC") at ¶ 2. Sometime in July 2006, Plaintiff borrowed $374,500 from World Savings Bank, FSB, a predecessor to Wells Fargo, which was secured by the Subject Property. Id. at ¶ 8. Subsequently, in 2011, Plaintiff defaulted on the loan after numerous, unsuccessful attempts to qualify for a loan modification from Wells Fargo. Id. at ¶¶ 9-26. As a result, Defendants began the foreclosure process, culminating in a trustee's sale of the Subject Property on January 9, 2012. Id.
Following the trustee's sale, Plaintiff filed her First Amended Complaint in Solano County Superior Court on January 13, 2012, asserting seven causes of action: (1) fraud; (2) violation of California Civil Code §§ 2924 et seq., 2923.5 and 2934(a); (3) intentional infliction of emotional distress; (4) breach of covenant of good faith and fair dealing; (5) negligence; (6) violation of Business & Professions Code § 17200; and (7)quiet title . See FAC.
Wells Fargo subsequently removed the case to federal court based on federal question and diversity jurisdiction (Doc. #1) on January 30, 2012, then filed the pending Motion to Dismiss and Motion to Strike. See Doc. #10, 13. 2
On February 15, 2012, Defendant NDeX moved to join Wells 3 Fargo's motions (Doc. #14), which Plaintiff did not oppose. 4
Accordingly, this Court considers the pending Motion to Dismiss and 5 Motion to Strike as filed by both Defendants. 6
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure section 15(a). "Dismissal with prejudice and without leave to amend is not 2 appropriate unless it is clear . . . that the complaint could not 3 be saved by ...