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Rigoberto M. Anguiano v. Bank of America

February 6, 2013

RIGOBERTO M. ANGUIANO,
PLAINTIFF,
v.
BANK OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge

ORDER GRANTING DEFENDANTS BANK OF MOTION TO DISMISS AMERICA AND U.S. BANK'S [Doc. No. 5]

Before the Court is Defendants Bank of America and U.S. Bank's motion to dismiss Plaintiff Rigoberto Anguiano's complaint. [Doc. No. 5.] For the reasons below, the Court hereby GRANTS Defendants' motion.

BACKGROUND

This is a mortgage case. On June 1, 2012, Plaintiff filed a complaint in San Diego County Superior Court alleging state law claims for slander of title, an accounting, injunctive relief, to quiet title, intentional infliction of emotional distress, cancellation of instruments, violation of California Civil Code section 2923.5 and 2934, and wrongful foreclosure. [Doc. No. 1-1.] On July 16, 2012, Defendants timely removed to this court on diversity grounds. [See Doc. No. 1 at 2.] On October 12, 2012, Defendants filed the present motion to dismiss for failure to sate a claim, [Doc. No. 5.]. No opposition has been filed.

DISCUSSION

Under Federal Rule of Civil Procedure 8(a)(2), "a complaint must 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, 677-78 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). For the reasons and to the extent specified below, Plaintiff's complaint fails to allege sufficient facts to support any cognizable legal theory and thus Defendants' motion to dismiss is GRANTED.

1. Slander of Title Claim

Slander of title claims require "(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss." Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal.App.4th 1040, 1050 (2009). Plaintiff makes no allegation of any false publication or any pecuniary loss. [Doc. No. 1-1.] These deficiencies are fatal here, see Velasco v. Security Nat. Mortg. Co., 823 F.Supp.2d 1061, 1069 (D. Hawai'i 2011), but nonetheless could be cured and thus Plaintiff's slander of title claim is DISMISSED WITHOUT PREJUDICE.

2. Accounting Claim

"Before an accounting is in order, the right to an accounting must be established. It may be dispensed with where under the evidence the need or right to one is not shown." Tina v. Coountrywide Home Loans, Inc., 2008 WL 4790906, at *3 (S.D. Cal. Oct. 30, 2008) (quoting Baxter v. Krieger, 157 Cal.App.2d 730, 732 (1958); see also St. James Church of Christ Holiness v. Superior Court, 135 Cal.App.2d 352, 359 (1955) ("A suit for an accounting will not lie where it appears from the complaint that none is necessary."). This case concerns foreclosure as a result of monies owed by Plaintiff to Defendants; there is no allegation that Defendants owe anything to Plaintiff. [Doc. No. 1-1.] Thus, Plaintiff fails to establish his right to an accounting. See Aguilar v. Cabrillo Mortg., 2010 WL 1909547, at * (S.D. Cal. May 11, 2012) ("Plaintiffs fail to adequately allege that any funds are owed to them. Accordingly, Plaintiffs failed to allege sufficient facts to state a cause of action for accounting."). Because Plaintiff could potentially remedy this deficiency, his claim for an accounting is DISMISSED WITHOUT PREJUDICE.

3. Injunctive Relief Claim

Injunctive relief is simply a remedy, not a valid cause of action. Vissuet v. Indymac Mortg. Services, 2010 WL 1031013, at *7 (S.D. Cal. Mar. 19, 2010) (citing Shell Oil Co. v. Richter, 52 Cal. App. 2d 164, 168 (1942)). Because Plaintiff's bare claim for injunctive relief does not constitute a valid cause of action, it is hereby DISMISSED WITH PREJUDICE.

4. Quiet Title Claim

A "quiet title action is doomed in the absence of Plaintiffs' tender of the full amount owed." Gjurovich v. Cal., 2010 WL 4321604, at *8 (E.D. Cal. Oct. 26, 2010). Plaintiff fails to allege tender, [see Doc. No. 1-1], and thus his claim to quiet title fails. Gjurovich, 2010 WL 4321604, at *8. But because this ...


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