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Kouretas v. Nationstar Mortgage Holdings, Inc.

United States District Court, E.D. California

April 16, 2015



MORRISON C. ENGLAND, Jr., District Judge.

This action proceeds on Plaintiff James Kouretas' ("Plaintiff") Second Amended Complaint ("SAC") seeking to recover from Defendants Bank of America ("BANA") and Nationstar Mortgage Holdings, Inc. ("Nationstar") (collectively "Defendants"). On April 7, 2014, Plaintiff filed a First Amended Complaint ("FAC"), asserting causes of action for breach of the implied covenant of good faith and fair dealing, wrongful foreclosure, and financial elder abuse in violation of state law. ECF No. 32. On Defendants' motions, the Court dismissed all but one of the claims with prejudice. ECF No. 49. Plaintiff was given twenty days to amend the implied covenant claim to cure deficiencies noted by the Court. Id. at 5-7, 10. In his operative SAC, Plaintiff now asserts claims for promissory estoppel, violation of the unfair competition law, and Racketeer Influenced and Corrupt Organizations ("RICO") violations. ECF No. 51. Presently before the Court are Defendants' Motions to Dismiss Plaintiff's SAC pursuant to Rule 12(b)(6) (ECF Nos. 64, 66).[1] For the following reasons, Defendants' motions are GRANTED without leave to amend.[2]


Plaintiff holds title to the property known as 3324 S Street, Sacramento, California, 95816 ("the Property"). The Property was secured by a first deed of trust in favor of BANA. In November 2013, Nationstar became the loan servicer.

In May 2013, Plaintiff wrote to BANA to request a loan modification. Plaintiff was told in several letters from BANA staff that his loan modification application had been received and was being forwarded to the appropriate department. While the loan modification was pending, BANA served Plaintiff with a notice of default on his home loan. In October 2013, BANA notified Plaintiff that they were denying his loan modification. Then, in November 2013, Nationstar wrote to Plaintiff that BANA had transferred the mortgage note to them. Plaintiff claims that Nationstar made the following statements in its letter: "[B]ased on the information we have received from your previous mortgage servicer, we believe you may be experiencing a financial hardship. We want to help you stay in your home." However, in December 2013, Plaintiff was notified that his home would be sold in a trustee's sale approximately a week later. That sale never took place, and Plaintiff continues to hold title to the Property.


On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), [4] all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, "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." Id . (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).

Furthermore, "Rule 8(a)(2)... requires a showing, rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). Thus, "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests." Id . (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs... have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id . However, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment..." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party... carries the greatest weight." Id . (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted where the amendment of the complaint... constitutes an exercise in futility....")).


A. Plaintiff Failed to Obtain Leave of the Court to Assert His New Claims

In the order that dismissed Plaintiff's FAC, the Court granted Plaintiff leave to amend his claim for breach of the implied covenant of good faith and fair dealing. ECF No. 49 at 10. However, in his operative SAC, Plaintiff does not allege liability under a theory of breach of the implied covenant of good faith and fair dealing. Instead, he brings two new claims-promissory estoppel and violation of the unfair competition law-and attempts to revive his RICO violation claim that was dismissed from his original complaint.

Procedurally, all of Plaintiff's claims are impermissible because Plaintiff failed to obtain leave of the Court to add these three claims against Defendants. "When the language of an order clearly states that a plaintiff may only amend to address certain deficiencies identified in the order, courts [in this circuit] have held that a plaintiff is barred from adding new claims or parties." See Jameson Beach Prop. Owners Ass'n v. United States, No. 2:13-CV-01025-MCE-AC, 2014 WL 4925253, at *4 (E.D. Cal. Sept. 29, 2014) (citing Benton v. Baker Hughes, No. CV-12-07735-MMM, 2013 WL 3353636, at *3 (C.D. Cal. June 30, 2013); DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390-LHK, 2010 WL 4285006, *3 (N.D. Cal. Oct. 22, 2010)). Here, the Court granted Defendants' prior motion to dismiss "with leave to amend as to Plaintiff's claim for breach of the implied covenant" but "without leave to amend" as to Plaintiff's other claims. ECF No. 49 at 10. Because the Court was "specific about the purpose of the limited leave granted, " Plaintiff's new claims are improperly before the Court and should be dismissed on those ...

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