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Marc A. Becker v. Wells Fargo Bank

October 17, 2012



Plaintiff Marc A. Becker filed suit against defendants Wells Fargo Bank, National Association ("Wells Fargo") and Federal National Mortgage Association ("FNMA") in state court, asserting claims arising from defendants' allegedly wrongful conduct related to a residential loan and foreclosure. Defendants then removed the proceeding to this court on the basis of diversity jurisdiction. (Docket No. 1.) Currently before the court is defendants' motion to dismiss the First Amended Complaint ("FAC") in its entirety for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 16.)

I. Factual and Procedural Background The factual and procedural background is set forth in detail in the court's Memorandum and Order addressing plaintiff's Complaint filed August 9, 2012. (Docket No. 11.) After this court granted defendants' motion to dismiss the complaint with leave to amend, plaintiff filed his FAC, which dropped his claim for specific performance and added a claim against Wells Fargo for breach of contract. (Docket No. 12.) Plaintiff now alleges that he entered into two oral contracts with Wells Fargo: one to postpone the planned foreclosure of the property at 2217 Quarry Way ("Property"), and the other to approve a short sale of the Property for $230,000. (FAC ¶¶ 15-17, 23.) He alleges that Wells Fargo breached these contracts when on October 17, 2011, it conducted a Trustee's sale of the Property. (FAC ¶ 18; see Defs.' Req. for Judicial Notice ("RJN") (Docket No. 8) Ex. 8.)

Plaintiff filed a voluntary Chapter 13 petition on July 8, 2011. (RJN Ex. 9.) Plaintiff filed his verified bankruptcy schedules on July 22, 2011, (id. Ex. 11), and an amended bankruptcy plan on October 27, 2011, (id. Ex. 12). The claims before the court in plaintiff's FAC were not listed as a potential asset in either of these documents, and no other amended schedules or plans were filed, (see id. Ex. 10), before the bankruptcy court confirmed the amended plan on July 7, 2012, (id. Ex. 14.). Having consulted the electronic docket for the bankruptcy proceeding, it appears to the court that the proceeding is ongoing.

Plaintiff brings claims for (1) declaratory judgment,

(2) breach of contract, (3) intentional interference with prospective advantage, (4) breach of the implied covenant of good faith and fair dealing, and (5) exemplary damages. Only the first claim is brought against all defendants; the four remaining claims are brought against Wells Fargo only. Defendants now move to dismiss all claims for failure to state a claim under Rule 12(b)(6).*fn1

II. Request for Judicial Notice

In general, a court may not consider items outside the pleadings when deciding a motion to dismiss, but it may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Judicial notice may properly be taken of matters of public record outside the pleadings. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

Defendants request that the court judicially notice several recorded documents pertaining to the Quarry Way property. (See RJN Exs. 1-8.) The court will take judicial notice of these documents, since they are matters of public record whose accuracy cannot be questioned. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

Defendants also request that the court judicially notice the Chapter 13 bankruptcy petition, amended schedules, and bankruptcy plan filed by plaintiff, as well as the electronic dockets associated with that bankruptcy filing. (RJN Exs. 9-12.) As these documents are public records capable of accurate and ready determination, they will be judicially noticed as well.

See Coward v. JP Morgan Chase Bank, Nat'l Ass'n, No. Civ. 2:11-3378 GEB DAD, 2012 WL 2263359, at *3 n.1 (E.D. Cal. June 15, 2012) (judicially noticing bankruptcy petition); Runaj v. Wells Fargo Bank, 667 F. Supp. 2d 1199, 1205 n.7 (S.D. Cal. 2009) (judicially noticing bankruptcy schedules); Mgmt. Action Programs, Inc. v. Global Leadership & Mgmt. Res., Inc., No. Civ. 04-8405 NM PLAX, 2005 WL 5747582, at *1 n.2 (C.D. Cal. May 18, 2005) (judicially noticing bankruptcy plan).

The remaining documents that defendants submit are items filed in plaintiff's bankruptcy proceedings. (RJN Exs. 13-15.) Judicial notice may properly be taken of proceedings from other cases. See Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir. 2002) ("[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.") (quoting U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)) (internal quotation marks omitted). The court will grant defendants' request, but the court takes judicial notice of the fact of the proceedings only and not of any facts contained within the documents. See Lee, 250 F.3d at 690.

III. Discussion

To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In deciding whether a plaintiff has stated a claim, the court must accept the allegations in the complaint as true and draw all reasonable ...

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