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Cordero v. U.S. Bank, N.A.

United States District Court, S.D. California

September 17, 2014

LUIS CORDERO, Plaintiff,
v.
U.S. BANK, N.A., et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Doc. No. 4]

MICHAEL M. ANELLO, District Judge.

Plaintiff Luis Cordero has filed a civil complaint alleging various violations of the California Homeowner Bill of Rights. Defendants U.S. Bank, N.A. ("U.S. Bank") and Residential Credit Solutions, Inc. ("RCS") move to dismiss Plaintiff's complaint in its entirety.[1] [Doc. No. 4.] Plaintiff did not file a response in opposition, and Defendants filed a Notice of Plaintiff's Non-Opposition to the motion to dismiss. [Doc. No. 10.] The Court determined the matter suitable for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss.

BACKGROUND

On September 8, 2005, Plaintiff executed a deed of trust against his residence at 974 Loma View, Chula Vista, CA 91910 as security for a loan of $430, 400 from Mortageit, Inc. [Cmpl. ¶ ¶ 1, 12.] On February 23, 2009, Plaintiff went into default, a Substitution of Trustee was recorded, and a Notice of Default was recorded. [Doc. No. 4.] A Notice of Trustee's Sale was recorded on May 27, 2009. [ Id. ] On October 15, 2012, an Assignment of Deed of Trust was recorded wherein all beneficial interest in the deed of trust was assigned to Defendant U.S. Bank [Cmpl. ¶ 13], and on March 8, 2013 a Substitution of Trustee was recorded substituting Defendant Sage, as trustee under the deed of trust. [Doc. No. 4.] A Notice of Default and Election to Sell Under Deed of Trust was recorded on January 16, 2014, and a Notice of Trustee's Sale was recorded on April 23, 2014. [ Id. ]

Plaintiff filed this action in the Superior Court of California, County of San Diego on January 20, 2014 alleging claims for violations of the California Homeowner Bill of Rights, codified as California Civil Code Sections 2923.5, 2924.17, 2924.19, 2924(a)(5), 2923.7, and 2923.6. Defendants removed the case to federal court on July 21, 2014, and now move to dismiss Plaintiff's claims under Federal Rule of Civil Procedure Rule 12(b)(6).

LEGAL STANDARD

A. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion to dismiss challenges the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations, brackets, and citations omitted).

In reviewing the motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations, and construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss, " Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998), and a court generally may not look beyond the complaint for additional facts, United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998).

Where a motion to dismiss is granted, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. ServWell Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). Therefore, where leave to amend would be futile, the court may dismiss the claims without leave to amend. See id.

B. Unopposed Motions to Dismiss

A district court may properly grant an unopposed motion to dismiss pursuant to a local rule where the local rule permits, but does not require, the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995). Southern District of California Civil Local Rule 7.1 provides: "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of a motion or other request for ruling by the court." S.D. Cal Civ. L. R. 7.1(f)(3)(c). "Although there is... a [public] policy favoring disposition on the merits, it is the responsibility of the moving party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (affirming grant of motion to dismiss for failure to prosecute); see also Ruiz v. Bank of America, N.A., 10-CV-500-MMA(BLM), 2010 WL 8510152 (S.D. Cal. Sept 30, 2010) (Anello J.) (dismissing action pursuant to local Rule 7.1 for plaintiff's failure to respond to a motion to dismiss); Yueh Chen v. PMC Bancorp, No. 09-CV-2704-WQH(BLM), 2010 WL 2943506 (S.D. Cal. July 23, 2010) (Hayes, J.) (same).

C. Requests for Judicial Notice

Generally, a district court's review on a 12(b)(6) motion to dismiss is limited to the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, "a court may take judicial notice of matters of public record, " id. at 689 (internal quotations and citations omitted), and of "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, " Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Gailbraith v. Cnty. Of Santa Clara, 307 F.3d 1119 (9th ...


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