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Penelope Bergman, On Behalf of Herself and All Others Similarly v. Fidelity National Financial

September 24, 2012

PENELOPE BERGMAN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
FIDELITY NATIONAL FINANCIAL, INC.; AND DOES 1--10, INCLUSIVE, DEFENDANTS.



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

ORDER GRANTING FIDELITY NATIONAL FINANCIAL, INC.'S MOTION TO DISMISS [8]

I.INTRODUCTION

Plaintiff Penelope Bergman brings claims against Fidelity National Financial for (1) violation of the Real Estate Settlement Procedures Act ("RESPA") and (2) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200. Fidelity moves to dismiss both for failure to allege sufficient facts to state either claim. For the reasons discussed below, the Court GRANTS Fidelity's motion.*fn1

II.FACTUAL BACKGROUND

On June 13, 2011, Bergman refinanced a property in Los Angeles, California. (Compl. ¶ 5.) Bergman alleges that Fidelity regularly enters into agreements with third-party delivery companies whereby Fidelity receives a fee for referring settlement-service business conducted by its subsidiaries, including Chicago Title. (Id. ¶ 3.) According to the Complaint, Chicago Title charged Bergman a delivery fee of $26.50 for a "delivery performed by a third party vendor." (Id. ¶ 6.) Bergman further alleges that the service performed by this unnamed third-party vendor was undertaken as a result of an agreement with Fidelity to pay Fidelity a referral fee in return for Fidelity's (or its subsidiaries') referral of settlement business to that vendor. (Id. ¶ 7.)

As a result of these allegations, Bergman commenced this action in state court on June 12, 2012. (ECF No. 1 Ex. A.) Fidelity subsequently removed the case to this Court on July 12, 2012. (ECF No. 1.)

III.LEGAL STANDARD

Dismissal under Rule 12(b)(6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement-to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, a complaint must nevertheless "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Iqbal's plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," but does not go so far as to impose a "probability requirement." Id. Rule 8 demands more than a complaint that is merely consistent with a defendant's liability-labels and conclusions, or formulaic recitals of the elements of a cause of action do not suffice. Id. Instead, the complaint must allege sufficient underlying facts to provide fair notice and enable the defendant to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 566 U.S. at 679.

When considering a Rule 12(b)(6) motion, a court is generally limited to 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]." Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Conclusory allegations, unwarranted deductions of fact, and unreasonable inferences need not be blindly accepted as true by the court. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Yet, a complaint should be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts" supporting plaintiff's claim for relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).

As a general rule, leave to amend a complaint that has been dismissed should be freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

IV.DISCUSSION

Fidelity moves to dismiss Bergman's Complaint for lack of Article III standing, expiration of the statute of limitations, and failure to state a claim under RESPA or ...


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