United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE RE:
DKT. NO. 3, 8
H. KOH United States District Judge.
the Court is Defendants Portfolio Servicing, Inc.
(“Portfolio”) and U.S. Bank National
Association's (“U.S. Bank”) (collectively,
“Defendants”) unopposed motion to dismiss. Having
considered the briefing on the motion, record in the case,
and the relevant law, the Court hereby GRANTS Defendants'
motion to dismiss with prejudice.
following facts are from Plaintiff's complaint and
Defendants' unopposed motion to dismiss. On August 3,
2006, Plaintiff and Arturo Andrade Avalos
(“Avalos”) obtained a loan from Washington Mutual
Bank, FA in the amount of $776, 000.00. The loan was secured
by a deed of trust encumbering the real property located at
37 Webb Road, Watsonville, California 95076 (“Webb Road
9, 2012, the beneficial interest under the Deed of Trust was
assigned to U.S. Bank as trustee of the WaMu Mortgage
Pass-Through Certificates Series 2006-AR13 Trust
(“Trust”). On August 5, 2015, National Default
Servicing Corporation was substituted as trustee under the
Deed of Trust.
Plaintiff defaulted on the loan, a Notice of Default and
Election to Sell Under Deed of Trust (“Default
Notice”) was recorded against the Webb Road property.
Notices of Trustee's Sale were recorded against Webb Road
property on October 22, 2012, March 1, 2013, September 9,
2013, January 8, 2014, August 12, 2015, July 27, 2016.
Exhibits 5-10. Plaintiff claims that Defendants' actions
during the foreclosure violated various provisions of
California and federal law, namely lack of standing to
foreclose, fraud in the concealment, fraud in the inducement,
intentional infliction of emotional distress, quiet title,
slander of title, declaratory relief, violations of the Truth
in Lending Act, violations of the Real Estate Settlement
Procedures Act, and rescission. ECF No. 1-1.
25, 2014, Plaintiff filed an earlier lawsuit against
Portfolio, U.S. Bank, and JP Morgan Chase Bank, N.A. in Santa
Cruz County Superior Court. Exhibit 11 (“2014
Action”). The 2014 Action alleged violation of Cal.
Civil Code § 2923.6(c), violation of Cal. Civil Code
§ 2923.7, violation of Cal. Civil Code § 2924.10,
violation of Cal. Civil Code § 2924(a)(6), violation of
Cal. Business & Professions Code § 17200, negligent
misrepresentation, breach of the implied covenant of good
faith and fair dealing, and a demand for accounting. All
counts stemmed from Defendants' foreclosure on the Webb
Road property. The Superior Court dismissed the first lawsuit
due to Plaintiff's failure to timely amend his complaint
on April 2, 2015, and entered judgment in favor of Defendants
on April 22, 2015. Exhibits 12-13.
September 15, 2016, Plaintiff filed a second lawsuit against
Defendants and Avalos in Santa Cruz County Superior Court.
Exhibit 14 (“2016 Action”). The 2016 Action
alleged that Avalos had improperly failed to participate in
Plaintiff's application for a loan modification.
Id. Plaintiff sought to quiet title and to enjoin
Defendants from foreclosing on the property until Plaintiff
secured title in his name alone. Id. On December 12,
2016, the Superior Court granted Defendants' motion for
judgment on the pleadings, dismissed the complaint, and
entered judgment in favor of Defendants. Exhibit 15-16.
two weeks after the 2016 Action was dismissed, Plaintiff
filed the instant action in Santa Cruz county Superior Court.
ECF No. 1-1. Defendants removed the case to this Court on
January 24, 2017. ECF No. 1.
Rule 12(b)(6) Motion to Dismiss
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Rule 12(b)(6). Rule 8(a)
requires a plaintiff to plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (internal quotation
marks omitted). For purposes of ruling on a Rule 12(b)(6)
motion, the Court “accept[s] factual allegations in the
complaint as true and construe[s] the pleadings in the light
most favorable to the nonmoving party.” Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008).
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Shwarz
v. United States, 234 F.3d 428, 435 (9th Cir.2000), and
it “may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion into a motion for summary judgment, Shaw
v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.1995). Nor must
the Court “assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir.2011) (per curiam) (internal quotation marks
omitted). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004).
Leave to Amend
Court determines that the complaint should be dismissed, it
must then decide whether to grant leave to amend. Under Rule
15(a) of the Federal Rules of Civil Procedure, leave to amend
“shall be freely given when justice so requires,
” bearing in mind “the underlying purpose of Rule
15 to facilitate decisions on the merits, rather than on the
pleadings or technicalities.” Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations
and internal quotation marks omitted). When dismissing a
complaint for failure to state a claim, “a district
court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other
facts.” Id. at 1130 (internal quotation marks
omitted). Accordingly, leave to amend generally shall be
denied only if allowing amendment would unduly prejudice the
opposing party, cause undue delay, or be futile, or if the
moving party has acted in bad faith. Leadsinger, Inc. v.
BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).
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