CIVIL MINUTES - GENERAL
DAVID O. CARTER, District Judge.
PROCEEDING (IN CHAMBERS): ORDER GRANTING MOTION TO DISMISS
Before the Court is a Motion to Dismiss (Dkt. 4) filed by Defendant Wells Fargo. The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby GRANTS the Motion.
Plaintiff Frank Williams ("Plaintiff"), on or about December 29, 2004, entered into a mortgage loan agreement with World Savings Bank, FSB ("World Savings"), in the amount of $425, 000. See Mortgage Note, Def's Request for Judicial Notice ("RJN") (Dkt. 5) Ex. A. To secure payment of the principal sum of the note, he conveyed to World Savings a deed of trust on the property located at 17192 Brooklyn Avenue, Yorba Linda, CA 92886 ("Property"). See Deed of Trust, RJN Ex. B. On December 31, 2007, World Savings changed its name to "Wachovia Mortgage, FSB." Charter of Wachovia Mortgage, FSB, RJC Ex. F. Subsequently, in November, 2009, Wachovia Mortgage changed its name to "Wells Fargo Bank Southwest, N.A., " and then merged into Wells Fargo Bank, N.A. See Certification of the Comptroller of the Currency, RJN Ex. G.
At some point in 2008, after suffering a financial setback that resulted in a decline in income, Plaintiff alleges that he missed a payment on his mortgage. Compl. §§ 19-21. Following this missed payment, Plaintiff alleges that he attempted to secure a loan modification. Id. § 22. On May 25, 2012, Plaintiff alleges that Defendant recorded a Notice of Default. Id. § 23.
On February 6, 2013, Plaintiff filed an action in the Superior Court of California, County of Orange, alleging violations of California Civil Code § 2923.5 ("Section 2923.5") and California Business & Professions Code § 17200 ("Section 17200"). See id. In support of these claims, Plaintiff contends that Defendant failed to comply with Section 2923.5 by failing to communicate with Plaintiff in order to assess Plaintiff's financial position and explore options that would avoid foreclosure. Id. §§ 48-64. Similarly, Plaintiff contends that, by violating Section 2923.5, Defendant also violated Section 17200 which prohibits unlawful acts of unfair competition. Id. §§ 38-45.
On February 20, 2013, Defendant removed the action to this Court. Not. of Removal (Dkt. 1). On March 6, 2013, Defendant filed the present Motion to Dismiss. Plaintiff filed his Opposition (Dkt. 7) on March 18, 2013, and Defendant filed its Reply (Dkt. 9) on March 22, 2013.
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In order for a complaint to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not to be accepted as true and do not establish a plausible claim for relief. Id. at 1950. Determining whether a complaint states a plausible claim for relief will be a context-specific task requiring the court to draw on its judicial experience and common sense. Id.
In evaluating a 12(b)(6) motion, review is "limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, exhibits attached to the complaint, as well as matters of public record, may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Further, a court may consider documents "on which the complaint necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). "The Court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).'" Id. (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).
Dismissal without leave to amend is appropriate only when the Court is satisfied that the deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend be freely given whenever justice requires. This policy is applied with "extraordinary liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
a. Plaintiff's Second Cause Of Action For Violation Of ...