United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
William H. Orrick United States District Judge
dismissed eight of the ten causes of action in her original
complaint with leave to amend, Dkt. No. 24, plaintiff Ana
Alvarez filed a first amended complaint against defendants
MTC Financial, Inc. dba Trustee Corps (“MTC”) and
JPMorgan Chase Bank (“Chase”) reiterating the
same claims arising from the defendants' failure to
contact her prior to pursuing foreclosure of her residence.
No foreclosure sale of the property has occurred. The amended
complaint is very much like the original. Chase now moves to
dismiss her claims other than her first claim under the
Homeowners Bill of Rights and her second claim under Civil
Code section 2923.5. Ms. Alvarez did not appear for the
hearing. Because her amended complaint fails to
adequately address the deficiencies I previously identified,
Chase's motion to dismiss is GRANTED WITHOUT LEAVE TO
AMEND. The remaining two claims survive.
26, 2007, Alvarez obtained a $600, 000.00 loan from Chase
secured by a deed of trust (“DOT”) for the real
property 270 Beachview Avenue, #14, Pacifica, California
94044. First Am. Compl. ¶ 17 (“FAC”)(Dkt.
No. 36); see also Def.'s Request for Judicial
Notice (RJN), Ex. 1 (Dkt. No. 38-2). She filed for bankruptcy on
November 4, 2011; March 21, 2016; and September 6, 2016. RJN
Exs. 5, 6, 7 (Dkt. Nos. 38-6, 38-7, 38-8).
26, 2015, MTC was substituted as the trustee under the DOT.
FAC ¶ 22; RJN, Ex. 2 (Dkt. No. 38-3). On July 10, 2015,
MTC issued and recorded a Notice of Default and Election to
Sell (“NOD”). FAC ¶ 24; RJN, Ex. 3 (Dkt. No.
38-4). The NOD documented the amount of default as $39,
067.37. RJN, Ex. 3. MTC recorded a Notice of Trustee's
Sale (“NOTS 1”) on October 16, 2015, with a sale
scheduled for November 30, 2015. FAC ¶ 27; see also
id., Ex. D. The amount of default was estimated to be
$794, 226.58. Id., Ex. D.
recorded another Notice of Trustee's Sale (“NOTS
2”) on February 11, 2016. FAC ¶ 28; see also
id., Ex. E. The NOTS 2 identified the amount of debt
as $808, 659.89 and set the trustee's sale for March 21,
2016. FAC, Ex. E. On July 19, 2016, MTC issued a third Notice
of Trustee's Sale (“NOTS 3”). RJN, Ex. 4
(Dkt. No. 38-5). The NOTS 3 indicated the estimated total
amount due of $814, 966.08, and set a sale date of August 18,
2016. RJN, Ex. 4. Foreclosure sale of the property has not
occurred. Mot. at 8 (Dkt. No. 38).
September 26, 2016, Alvarez filed this action in California
Superior Court, County of San Mateo. NOR ¶ 1 (Dkt. No.
1). MTC filed a Declaration of Non-Monetary Status, thus
excusing it from participating in this suit. Hafiz v.
Greenpoint Mortg. Funding, Inc., 652 F.Supp.2d 1050,
1052 (N.D. Cal. 2009), aff'd sub nom. Hafiz v.
Greenpoint Mortg. Funding, 409 F.App'x 70 (9th Cir.
2010)(“When a trustee under a deed of trust files a
declaration of non-monetary status, the party is transformed
into a ‘nominal' party, thus excusing it from
participating in the action.”). Chase then removed
based on diversity of citizenship, and MTC's status as a
nominal party.NOR ¶¶ 7-8. Chase moved to
dismiss on November 10, 2016, Dkt. No. 8, and I granted the
motion, except as to Alvarez's claims under the HBOR and
California Civil Code section 2923.5, for which I requested
additional information from Chase. See Order
Regarding Defendants' Motion to Dismiss at 13:8-16
(“Prior Order”)(Dkt. No. 24). Chase filed a
declaration in accordance with the Prior Order describing its
efforts to comply with Section 2923.55. Liu Decl. (Dkt. No.
35). It concluded that it was unable to confirm that it had
sent a certified letter to plaintiff, as required by the due
diligence standard of California Civil Code section
2923.5(e), and so it “withdr[ew] its Motion with
respect to the first claim for alleged violation of the
Homeowner's Bill of Rights and second claim for alleged
violation of Civil Code § 2923.5.” Liu Decl.
days later, Alvarez filed her first amended complaint
(“FAC”)(Dkt. No. 36), repeating the same ten
claims: (1) violation of the Homeowners Bill of Rights
(“HBOR”), FAC ¶¶ 44-53; (2) violations
of California Civil Code § 2923.5, id.
¶¶ 54-59; (3) negligence, id. ¶¶
60-72; (4) declaratory relief, id. ¶¶
73-84; (5) fraud in the concealment, id.
¶¶ 85-107; (6) intentional infliction of emotional
distress, id. ¶¶ 108-120; (7) slander of
title, id. ¶¶ 121-130; (8) quiet title,
id. ¶¶ 131-138; (9) recission [sic]
against defendant Chase, id. ¶¶ 139-143;
(10) injunctive relief, id. ¶¶ 144-157.
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), 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) (internal quotation marks and
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) tests the legal sufficiency
of a complaint. Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). “Dismissal under Rule 12(b)(6) is
appropriate only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable legal
theory.” Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a
complaint “need not contain detailed factual
allegations” to survive a Rule 12(b)(6) motion,
“it must plead enough facts to state a claim to relief
that is plausible on its face.” Cousins v.
Lockyer, 568 F.3d 1063, 1067-68 (9th Cir. 2009)
(internal quotation marks and citations omitted). A claim is
facially plausible when it “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) (internal quotation marks omitted).
considering whether a claim satisfies this standard, the
court must “accept factual allegations in the complaint
as true and construe the pleadings in the light most
favorable to the nonmoving party.” Manzarek v. St.
Paul Fire & Marines Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008). However, “conclusory allegations of
law and unwarranted inferences are insufficient to avoid a
Rule 12(b)(6) dismissal.” Cousins, 568 F.3d at
1067 (internal quotation marks omitted). A court may
“reject, as implausible, allegations that are too
speculative to warrant further factual development.”
Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir.
moves to dismiss all claims, other than Alvarez's claim
under the HBOR and California Code section