United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
This is an action by plaintiffs, proceeding in pro se, challenging the foreclosure of a trust deed as to certain real property. Defendants Federal Home Loan Services ("Freddie Mac") and Quality Loan Services Corporation ("Quality"), erroneously sued as Quality Home Loan Services, move to dismiss the first amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). ECF Nos. 36, 42. For the reasons explained below, defendants' motions must be granted.
I. Factual Allegations
The first amended complaint alleges that on or about December 14, 1993, Donald M. Riedel borrowed $85, 000 under a promissory note and executed a deed of trust in favor of America's Wholesale Lender to secure the loan against property located at 106 H Street, Lincoln, California (the "subject property"). First Am. Compl., ECF No. 33 at ¶¶ 7, 11. On October 13, 2000, Donald Riedel transferred his interest in the property by way of what is referred to as an "Interspousal Transfer Grant Deed" to Ms. Sofia Campos-Riedel ("Ms. Campos-Riedel"). Id. at ¶ 12. On January 16, 2001, plaintiffs executed a Deed of Trust between plaintiffs and Ms. Campos-Riedel. Id. at ¶ 14. The Deed of Trust was recorded in the Placer County Recorder's Office as Instrument No. 2001-0004547. Id.
On December 11, 2008, defendant Quality, acting on behalf of defendant Freddie Mac, recorded a Notice of Default and Election to Sell under Deed of Trust in the Placer County Recorder's Office. Id. at ¶ 15. On March 13, 2009, Quality recorded a second Notice of Trustee's Sale with the Placer County Recorder's Officer. Id. at ¶ 17. On April 5, 2010, Quality recorded a Notice of trustee's Sale, which noticed the sale date for April 28, 2010. Id. at ¶ 19. On January 11, 2011, Quality recorded a third Notice of Trustee's Sale, this time noticing the sale date for February 22, 2011. Id. at ¶ 20. Plaintiffs allege that on January 19, 2012, at the direction of Freddie Mac, Quality held an unnoticed Trustee Sale. Id. at ¶ 21.
At the January 19 Trustee Sale, Freddie Mac acquired the subject property through a credit bid at a price far below market value. Id. at ¶ 22. On January 30, 2012, a Trustee's Deed Upon Sale ("Trustee's Deed") was recorded with the Placer County Recorder's Office. Id. ¶ 23. Plaintiffs allege that at the time of the sale they had a $50, 000 recorded lien against the property and that they therefore were entitled to receive notice by certified mail of the January 19, 2012 Trustee Sale pursuant to California Civil Code §§ 2924b(c)(1) and 2924b(c)(2). Id. at ¶ 25. Plaintiffs allege that no notice was received or given by Quality which prevented plaintiffs from protecting their interest in the property. Id. at ¶¶ 26, 27.
Plaintiffs' first amended complaint ("FAC") alleges the following claims for relief: (1) failure to provide adequate notice of sale; (2) negligence; (3) intentional interference with contractual relations, (4) intentional interference with prospective economic advantage, (5) unlawful business practices, and (6) financial elder abuse. Defendants now move to dismiss the first amended complaint pursuant to Rule 12(b)(6) for failure to state a claim.
II. Motions to Dismiss
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more... than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969).
The court is mindful of the plaintiffs' pro se status. Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). However, although the court must construe the pleadings of a pro se litigant liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985), that liberal interpretation may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he 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). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
In deciding a Rule 12(b)(6) motion to dismiss, the court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr.Ct., 828 F.2d at 1338, and matters of public record, including pleadings, orders, and other ...