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Brooksbank v. Private Capital Group, LLC

United States District Court, N.D. California, San Jose Division

April 16, 2014

PRIVATE CAPITAL GROUP, LLC; and DOES 1-20 inclusive, Defendants.


HOWARD R. LLOYD, Magistrate Judge.

Plaintiff Heather Brooksbank sues Private Capital Group ("PCG") for breach of contract and fraud arising from PCG's selling her house at a trustee's sale instead of allowing her to pursue the "short sale" option pursuant to their alleged agreement. PCG removed the case and now moves to dismiss Brooksbank's complaint for failure to state a claim upon which relief can be granted. Brooksbank opposes the motion. Based on the moving and responding papers, as well as the arguments of counsel at the hearing on April 15, 2014, the Court grants in part and denies in part PCG's motion.


Brooksbank was in default on her mortgage by May 2009. On May 1, PCG (or a representative thereof) called to discuss her options with respect to her default, including PCG's "short sale" program. On May 8, Brooksbank called PCG to accept the "short sale" offer. Among other things, Brooksbank was told to enlist a real estate agent to fax PCG a marketing plan and listing agreement before the date of the scheduled trustee's sale. Plaintiff agreed to fulfill the requirements and was told she would receive a letter in the mail. Shortly thereafter, Brooksbank received a "written offer" from PCG to take advantage of the short sale program. The offer letter provided that Brooksbank must list the property for sale at market value, be available for any showings, keep the property reasonably clean, maintain the yard, and pay $821.68 per month to cover the cost of taxes and insurance on the property. In return, PCG will pay Brooksbank 5% of the net sale proceeds and forgive any remaining debt. Brooksbank called PCG and accepted the offer. She hired a real estate agent and complied with all of PCG's requirements. Regardless, PCG sold her home at the Trustee's Sale on May 21, 2013, causing her to lose over $300, 000 in equity she had in the home.


A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the claimant. Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Moreover, "the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." This means that the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, only plausible claims for relief will survive a motion to dismiss. Iqbal, 129 S.Ct. at 1950. A claim is plausible if its factual content permits the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id.

"In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). However, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Id. "A pleading is sufficient under rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations. While statements of the time, place and nature of the alleged fraudulent activities are sufficient, mere conclusory allegations of fraud are insufficient." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989).

While leave to amend generally is granted liberally, the court has discretion to dismiss a claim without leave to amend if amendment would be futile. Rivera v. BAC Home Loans Servicing, L.P., 756 F.Supp.2d 1193, 1997 (N.D. Cal. 2010) (citing Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996)).


A. Breach of Contract

"A [claim] for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damage to plaintiff." Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1367 (2010). PCG argues that Brooksbank has not adequately pled any element.

1. Existence of a Contract

"An essential element of any contract is the consent of the parties, or mutual assent." Donovan v. RRL Corp., 26 Cal.4th 261, 270 (2001) (citing Cal. Civil Code ยงยง 1550(2), 1565(2)). "Mutual assent usually is manifested by an offer communicated to the offeree and an acceptance communicated to the offeror." Id. at 270-71. "An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. The determination of whether a particular communication constitutes an operative offer, rather than an inoperative step in the preliminary negotiation of a contract, depends upon all the surrounding circumstances. The objective manifestation of ...

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