United States District Court, S.D. California
NANCY L. FENTON, Plaintiff,
WELLS FARGO HOME MORTGAGE ET AL., Defendants.
ORDER (1) GRANTING MOTION TO DISMISS AND (2) GRANTING
IN PART AND DENYING IN PART REQUEST FOR JUDICIAL
Dana M. Sabraw United States District Judge
before the Court is Defendant Wells Fargo Home Mortgage's
(“Wells Fargo”) motion to dismiss Plaintiff Nancy
L. Fenton's complaint and request for judicial notice.
Defendant Northwest Trustee Services, Inc.
(“Northwest”) joins in Wells Fargo's motion
to dismiss. Plaintiff filed a response, and Defendant Wells
Fargo filed a reply. For the following reasons,
Defendant's motion to dismiss is granted and the request
for judicial notice is granted in part and denied in part.
action concerns the foreclosure proceedings on
Plaintiff's real property located at 4175 Porte De Merano
#163, San Diego, California 92122 (“subject
property”). (ECF No. 1, Ex. A (“Complaint”)
¶ 5.) Plaintiff allegedly obtained a loan from Golden
West Savings Association Service Co. (“Golden West
Savings”) to purchase the subject
property. (Id. ¶ 6.) Plaintiff claims
she paid off the loan on July 21, 2004. (Id.)
on September 22, 2006, Plaintiff obtained a loan from World
Savings Bank, FSB (“World Savings”) in the amount
of $308, 500. Wells Fargo is the legal successor to World
Savings. (ECF No. 1, Ex. C.) This loan was secured
by a deed of trust recorded against the subject
property. (Id.) The deed of trust lists
Golden West Savings as trustee. (Id.)
August 2016, Wells Fargo executed and recorded a notice of
default against Plaintiff. (ECF No., Ex. B.) Wells Fargo
claims the notice of default indicated that Plaintiff was
$16, 251.75 in default on her loan. (Mem. of P. & A. in
Supp. of Mot. at 3.) Subsequently, the subject property was
scheduled for foreclosure on December 20, 2016. (Compl.
December 6, 2016, Plaintiff filed a complaint in the San
Diego County Superior Court, alleging the following claims:
(1) quiet title, (2) declaratory relief, and (3) injunctive
relief. (Compl. ¶¶ 11-21.) Subsequently, Plaintiff
filed an emergency ex parte application to cancel
foreclosure, which the Superior Court granted on December 8,
2016. ((ECF No., Ex. B.) On January 20, 2017, Defendants
removed the action to federal court, invoking this
Court's diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. The present motion followed.
Request for Judicial Notice
a court may not consider material beyond the complaint in
ruling on a Rule 12(b)(6) motion. Lee v. City of
L.A., 250 F.3d 668, 688 (9th Cir. 2001). However, a
court may “consider certain materials-documents
attached to the complaint, documents incorporated by
reference in the complaint, or matters of judicial
notice-without converting the motion to dismiss into a motion
for summary judgment.” United States v.
Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). Under
Federal Rule of Evidence 201(b), a judicially noticed fact
must be one “not subject to reasonable dispute because
it: (1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Therefore, “[a] court
may take judicial notice of ‘matters of public
record' without converting a motion to dismiss into a
motion for summary judgment, ” as long as the facts
noticed are not “subject to reasonable dispute.”
Intri-Plex Technologies, Inc. v. Crest Group Inc.,
499 F.3d 1048, 1052 (9th Cir. 2007) (quoting Lee,
250 F.3d at 689).
requests the Court take judicial notice of the following ten
documents: (1) deed of trust recorded on July 12, 2004
(“Exhibit A”), (2) deed of trust recorded on
October 6, 2006 (“Exhibit B”), (3) full
reconveyance recorded on October 19, 2006 (“Exhibit
C”), (4) certificate of corporate existence issued by
Office of Thrift Supervision, Department of the Treasury
(“OTS”) (“Exhibit D”), (5) a letter
from OTS reflecting name change from World Savings Bank, FSB
to Wachovia Mortgage, FSB (“Exhibit E”), (6)
charter of Wachovia Mortgage (“Exhibit F”), (7)
official certification of the Comptroller of the Currency,
reflecting Wachovia Mortgage's merger into Wells Fargo
(“Exhibit G”), (8) printout from website of the
Federal Deposit Insurance Corporation (“FDIC”),
showing the history of Wachovia Mortgage (“Exhibit
H”), (9) portions of Plaintiff's bankruptcy
petition filed on February 5, 2014 (“Exhibit I”),
and (10) notice of default and election to sell under deed of
trust recorded on August 22, 2016 (“Exhibit J”).
Plaintiff challenges the authenticity of Exhibits A and B,
contending the deeds of trust are forgeries. As to the
remaining exhibits, Plaintiff does not question their
authenticity. Plaintiff, however, objects insofar as
Defendant seeks to have the Court take judicial notice of the
truth of the statements contained in the documents.
the Court finds it is unnecessary to take judicial notice of
Exhibits B, E, and G, because these documents are already
before the Court as exhibits to the Notice of
Removal. See, e.g., Beal v.
Royal Oak Bar, No. C 13-04911 LB, 2014 WL 1678015, at *2
n.2 (N.D. Cal. Apr. 28, 2014) (denying request for judicial
notice “[b]ecause these documents are already filed in
the docket for this action, it is unnecessary for the court
to take judicial notice of them.”); Johnson v.
Haight Ashbury Med. Clinics, Inc., No. C-11-02052-YGR,
2012 WL 629312, at *1 (N.D. Cal. Feb. 27, 2012) (denying
request for judicial notice “because it is unnecessary
to take judicial notice of documents in the record in this
action”). Accordingly, Defendant's request for
judicial notice as to Exhibits B, E, and G is denied.
the Court declines to take judicial notice of Exhibit A,
because there is sufficient dispute as to the authenticity of
the deed of trust. Plaintiff challenges the authenticity of
the deed of trust, arguing it is a forgery. In support,
Plaintiff has submitted a declaration, attesting that
“Exhibit A purports to be a Deed of Trust executed by
me in 2004, securing a note from World Savings. The signature
on the document is a forgery; I deny taking out any loan from
World Savings in 2004.” (Fenton Decl. ¶ 4.)
Accordingly, Defendant's request for judicial notice as
to Exhibit A is denied. See, e.g., Doss v.
Clearwater Title Co., 551 F.3d 634, 640 (7th Cir. 2008)
(finding the district court erred in taking judicial notice
of a deed of sale when plaintiff claimed it was a forgery);
Deen v. City of ...