United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S COMPLAINT [DOC. NO. 6]
A. HOUSTON United States District Judge.
before the Court is Defendants' U.S. Bank National
Association (“US Bank”) and Nationstar Mortgage,
LLC (“Nationstar”) motion to dismiss the
complaint for failure to state a claim upon which relief can
be granted pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. (See Doc. 6). Plaintiff Michael
Dare (“Plaintiff”) filed an opposition to the
motion. (See Doc. 10). After a careful review of the
pleadings and relevant exhibits submitted by the parties,
this Court GRANTS Defendants' motion to
is a resident of San Diego County and is the recorded title
holder to the property located at 1800 S. Juniper Street,
Escondido, CA 92025. (Compl.¶1.) Defendant U.S. Bank is
a national banking association with its main office in
Cincinnati, Ohio. (Doc. 1. at 3). Defendant Nationstar is a
Delaware limited liability company with its principal place
of business in Lewisville, Texas. (Id.)
April 5, 2006, Plaintiff refinanced his property with a loan
from Aegis Wholesale Corporation (“Aegis”). (Doc.
1., Exhibit A). The loan was secured by a deed of trust on
the property recorded April 10, 2006. (Doc. 1., Exhibit B).
The deed of trust named Commonwealth Land Title as trustee
and Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the initial beneficiary.
of 2011, MERS assigned the deed of trust to U.S. Bank. (Doc.
1., Exhibit C). In March of 2014, Nationstar, as attorney
in fact for U.S. Bank, executed a substitution of trustee
naming Sage Point Lender Services, LLC (“Sage
Point”) as trustee. (Doc. 6., Exhibit 4). Sage Point
recorded a default against the property on April 15, 2014.
(Id., Exhibit 5). The default stated that Plaintiff
owed $145, 198.39 as of April 15, 2014. (Id.) U.S.
Bank subsequently executed a substitution of trustee
appointing Barret Daffin Frappier Treder & Weiss, LLS
(“Barret Daffin”) as trustee in July of 2015.
(Id., Exhibit 6). Barrett Daffin then recorded a
notice of trustee's sale against the property, indicating
the property would be sold at foreclosure on October 9, 2015.
(Id., Exhibit 7).
initiated the instant complaint in San Diego Superior Court
on November 17, 2015. (See Doc. 1, Exhibit 1).
Plaintiff alleges seven causes of action: 1) fraud in the
concealment; 2) unconscionable contract; 3) breach of
fiduciary duty; 4) intentional infliction of emotion
distress; 5) declaratory relief; 6) wrongful foreclosure; and
7) violation of the California Homeowner Bill of Rights.
(See Compl.) The complaint was removed on December
16, 2015. (See Doc. 1). On January 13, 2016,
Defendants filed a motion to dismiss for failure to state a
claim upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6). (See Doc. 6). Plaintiff filed
an opposition to the motion on February 3, 2016.
(See Doc. 10). Defendants filed a reply to the
opposition on March 7, 2016. (See Doc. 13). The
motion was subsequently taken under submission without oral
argument pursuant to Local Rule 7.1(d.1).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint and the claims alleged. See Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint
may be dismissed where it fails to plead essential facts
under a legal theory. See Robertson v. Dean Witter
reynolds, Inc., 749 F.2d 530, 534, (9th Cir. 1984).
While a plaintiff need not give “detailed factual
allegations, ” he must plead sufficient facts that, if
true, “raise a right to relief above the speculative
level.” See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 545 (2007).
Supreme Court has held that, while a complaint does not need
detailed factual allegations “[a] plaintiff's
obligation to provide ‘grounds' of his
‘entitle(ment) to relief requires more than labels and
conclusions.... Factual allegations must be enough to raise a
right to relief above the speculative level....”
See Salsman v. Access Sys. Ams., Inc., 2010 U.S.
Dist. 9, 5 (N.D. Cal. 2010) (Citing to: Twombly, 550
U.S. at 555). A claim is facially plausible when the factual
allegations permit “the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. In other words, “the
non-conclusory ‘factual content, ' and reasonable
inferences from that content, must be plausibly suggestive of
a claim entitling the plaintiff to relief.” See
Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2009). “Determining whether a complaint states a
plausible claim for relief will be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1950 (2009).
reviewing a motion to dismiss under Rule 12(b)(6), the court
may consider documents referenced in a complaint as long as
the documents do not convert the motion to one for summary
judgment. See Emrich v. Touche Ross & Co., 846
F.2d 1190, 1198 (9th Cir. 1988). In considering a motion to
dismiss, a court must assume the truth of all factual
allegations and must construe all inferences from them in the
light most favorable to the nonmoving party. See Thompson
v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill
v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.
1996). However, legal conclusions need not be taken as true
merely because they are cast in the form of factual
allegations. See Ileto v. Glock, Inc., 349 F.3d
1191, 1200 (9th Cir. 2003); Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on
a motion to dismiss, the court may consider the facts alleged
in the complaint, documents attached to the complaint,
documents relied upon but not attached to the complaint when
authenticity is not contested, and matters of which the court
takes judicial notice. See Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a
court determines that a complaint fails to state a claim, the
court should grant leave to amend unless it determines that
the pleading could not possibly be cured by the allegation of
other facts. See Doe v. United States, 58 F.3d 494,
497 (9th Cir. 1995).
to Rule 9(b), “[i]n all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be
stated with particularity.” According to Rule 9(b), the
complaint must contain specific allegations of who, what,
where, when and how of the misconduct as to each
defendant's role in the alleged fraud. See United
States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc.,
637 F.3d 1047, 1055 (9th Cir. 2011); Vess v. Ciba-Geigy
Corp., 317 F.3d 1097, 1106 (9th Cir. 2003).
instant motion, Defendants contend (a) Plaintiff's fraud
claim is insufficiently pled and time-barred; (b)
Plaintiff's “unconscionable contract[s]”
claim fails because there are no factual allegations
supporting procedural or substantive unconscionability; (c)
Plaintiff's breach of fiduciary duty claim fails to
allege the existence of a fiduciary duty; (d) Plaintiff's
intentional infliction of emotional distress claim fails to
detail outrageous conduct; and (e) Plaintiff's
declaratory judgment, wrongful foreclosure, and HBOR claims
should be dismissed for lack of tender. (See Doc.
Fraud, Unconscionable Contract[s], and Breach of Fiduciary
assert that Plaintiff's fraud claim is not pled with
particularity and fails to meet Rule 9(b)'s pleading
requirements. (See Doc. 6 at 9). A fraud claim
contains five elements: 1) misrepresentation or concealment;
2) knowledge of the falsity; 3) intent to defraud; 4)
justifiable reliance; and 5) resulting damage. Kearns v.
Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009)
(quoting Engalla v. Permanente Med. Grp., Inc., 15
Cal.4th 951, 974, (Cal 1997)). Additionally, a fraud
allegation must include ...