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Dennly Becker v. Wells Fargo Bank


March 30, 2013



Plaintiff filed the above-entitled action. The matter was referred to a United States Magistrate Judge under Local Rule 302(c).

On January 23, 2013, the magistrate judge filed findings and recommendations, which were served on the parties and which contained notice to the parties that any objections to the findings and recommendations were to be filed within fourteen days. Objections to the findings and recommendations have been filed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the file, the court adopts the findings and recommendations in part and modifies them in part. Specifically, the court adopts the magistrate's recommendation that plaintiff's complaint be dismissed, but the court finds plaintiff should be given leave to amend several claims.

Federal Rule of Civil Procedure 15(a)(2) states "[t]he court should freely give leave [to amend pleadings] when justice so requires" and the Ninth Circuit has "stressed Rule 15's policy of favoring amendments." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). "In exercising its discretion [to grant or deny leave to amend] 'a court must be guided by the underlying purpose of Rule 15 - to facilitate decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). However, "the liberality in granting leave to amend is subject to several limitations. Leave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay." Ascon Properties, 866 F.2d at 1160 (internal citations omitted). In addition, a court should look to whether the plaintiff has previously amended the complaint, as "the district court's discretion is especially broad 'where the court has already given a plaintiff one or more opportunities to amend [its] complaint.'" Id. at 1161 (quoting Leighton, 833 F.2d at 186 n.3).

Plaintiff has not yet been given an opportunity to amend. On the record before the court, including the contents of plaintiff's objections, the court cannot conclude it would be futile to permit plaintiff to amend his fraud claims, if he is able to do so while complying in full with Federal Rule of Civil Procedure 11 and the standards for fraud pleadings set forth in the findings and recommendations. Accordingly, plaintiff's Elder Abuse Act and California Unfair Competition Law claims, as they are premised upon the fraud claims, also are dismissed with leave to amend. The court adopts in full the magistrate judge's recommendation on the balance of plaintiff's claims and dismisses them with prejudice.

Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed January 23, 2013 are adopted in part and modified in part;

2. Defendant's motion to dismiss (dkt. no. 39) is granted;

3. Plaintiff is given leave to amend the following claims: fraud (claim one), false promise (claim three), Elder Abuse Act (claim eleven), and Unfair Competition Law (claim twelve); and

4. The rest of plaintiff's claims are dismissed with prejudice.


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