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Federal Deposit Insurance Corporation, As Receiver For v. First Priority Financial

March 26, 2013

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR
DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A PLAINTIFF,
v.
FIRST PRIORITY FINANCIAL, INC., A CALIFORNIA CORPORATION; AND DAVID MICHAEL SOLDATI, AN INDIVIDUAL;
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS

Defendants First Priority Financial, Inc., ("First Priority") and David Michael Soldati ("Soldati") (collectively "Defendants") moves for dismissal of Plaintiff's First Amended Complaint ("FAC") under Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Defs.' Mot. to Dismiss Pl.'s FAC ("Defs.' Mot."), ECF No. 25.) Defendants argue that Plaintiff's first claim alleging breach of contract against First Priority should be dismissed because it "fails to allege facts sufficient to give First Priority [] fair notice of the claim being asserted and the grounds upon which it rests," that Plaintiff's second, third, and fourth claims "are barred by the statute[s] of limitations," and that Soldati should be dismissed as a party without leave to amend because Soldati is not alleged to have "committed any breach of fiduciary duty or . . . any other act." (Id. 3:1--3, 3:21, 7:12--13.) Plaintiff opposes the motion.

I. LEGAL STANDARD

Decision on Defendants' Rule 12(b)(6) dismissal motion requires determination of "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

When determining the sufficiency of a claim under Rule 12(b)(6), "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (internal quotation marks omitted). However, this tenet does not apply to "legal conclusions . . . cast in the form of factual allegations." Id. (internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (internal quotation marks omitted); see also Iqbal, 556 U.S. at 678("A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" (quoting Twombly, 550 U.S. at 555)).

II. DISCUSSION

A. Plaintiff's First Claim

Defendants argue Plaintiff's breach of contract claim should be dismissed because it "consists almost entirely of legal conclusions." (Defs.' Mot. 3:1.) Plaintiff replies that "allegations in the FAC . . clearly set forth the nature of [Plaintiff]'s allegations against First Priority, . . . [including the e]xistence of a contract[,] . . . Plaintiff's [p]erformance[,] . . . [First Priority]'s [b]reach[,] . . . [and] damages." (Pl.'s Opp'n to Defs.' Mot. ("Pl.'s Opp'n") 5:1--6:4 (citing to FAC ¶¶ 12, 15, 17--18), ECF No. 29.) Further, Plaintiff argues that "First Priority acknowledges the nature of [Plaintiff]'s allegations against it [in the dismissal motion, specifically,] that First Priority submitted a 'loan application [which] overstated the borrower's income,' and 'misrepresented the borrower's employment[,]' . . . [and therefore First Priority] cannot legitimately argue that it has not been put on notice of the claims against it." (Id. 4:22--26 (quoting Defs.' Mot., at 3) (second alteration in original).)

In California, "[a] cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach." CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (2008).

[P]leading is governed by Rule 8 of the Federal Rules of Civil Procedure, not by State procedural requirements. Under Federal Rules of Civil Procedure 8(a), a "short and plain statement of the claim" suffices. The forms appended to the Federal Rules of Civil Procedure note that "plaintiff may set forth the contract verbatim in the complaint or plead it, as indicated, by exhibit or plead it according to its legal effect."

Securimetrics, Inc. v. Hartford Cas. Ins. Co., No. C 0500917CW, 2005 WL 1712008, at *2 (N.D. Cal. July 21, 2005) (quoting Fed. R. Civ. P. 8(a); Fed. R. Civ. P. Official Form 3, 12).

Plaintiff argues that it "sets forth the existence and pertinent terms of Downey's contract with First Priority, verbatim, in the FAC." (Pl.'s Opp'n 5:3--4; see FAC ¶¶ 11--12.) Plaintiff also argues that the Brokerage Agreement is attached to the FAC as Exhibit A. (FAC, Ex. A.) Plaintiff further argues that it alleges "Plaintiff's [p]erformance," (Pl.'s Opp'n 5:14), "First Priority's breach of the [contract]," (id. 5:17--18), and damages. (Id. 6:3--4.)

Plaintiff alleges in the FAC that the Warranties and Representations paragraph of the Brokerage Agreement states in pertinent part: "Broker warrants and represents to Downey Savings that: (a) all information submitted by Broker with regard to any loan applications submitted . . . [is] true, correct, currently valid, and genuine, and that Broker has undertaken a reasonable investigation in making such determination." (FAC ¶ 12.) The FAC also contains the following allegations concerning First Priority's breach of the Brokerage Agreement: "In submitting the Walker Loan to Downey, First Priority breached the representations and warranties contained in the Brokerage Agreement in that the loan application misrepresented (overstated) the borrower's income," (id. ¶ 15(a)); "[i]n submitting the Canas Loan to Downey, First Priority breached the representations and warranties contained in the Brokerage Agreement in that the loan application misrepresented the borrower's employment and overstated the borrower income," (id. ¶ 15(b)); and "[i]n submitting the Kearns Loan to Downey, First Priority breached the representations and warranties contained in the Brokerage Agreement in that the loan application misrepresented (overstated) the borrower's income, and the ...


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