United States District Court, N.D. California
ORDER RE: MOTION TO STRIKE RE: DKT. NO. 134
MARIA-ELENA JAMES United States Magistrate Judge.
Wells Fargo Bank, N.A. ("Wells Fargo") moves to
strike portions of Plaintiff Kayode Powell‘s Third
Amended Complaint ("TAC") pursuant to Federal Rule
of Civil Procedure 12(f). Mot., Dkt. No. 134; TAC, Dkt. No.
133. Plaintiff filed an Opposition (Dkt. No. 141) and Wells
Fargo filed a Reply (Dkt. No. 141). The Court ordered the
parties to submit supplemental briefing and vacated the
hearing on this matter. Dkt. No. 145. Having considered the
parties‘ positions, the record in this case, and the
relevant legal authority, the Court GRANTS IN PART and DENIES
IN PART Wells Fargo‘s Motion.
Court‘s Order re: Motions to Dismiss and Motion to
Amend ("Order") sets forth a detailed background of
this action. Order at 2-5, Dkt. No. 131. As is relevant here,
Plaintiff initiated this action pro se in Alameda Superior
Court against Wells Fargo and nine other
Defendants. See Compl., Dkt. No. 1-1 et seq.
On September 19, 2014, Wells Fargo and HSBC removed the
action to this Court. Notice of Removal, Dkt. No. 1.
parties engaged in motion practice, and on June 10, 2016,
Plaintiff filed his Second Amended Complaint
("SAC"). Dkt. No. 105. He asserted six cause of
action: (1) Negligence against Wells Fargo, HSBC, and First
American; (2) violation of California's Rosenthal Fair
Debt Collection Act against Wells Fargo and First American;
(3) Breach of Contract against Wells Fargo and HSBC; (4)
Fraud against Wells Fargo and HSBC; (5) Declaratory Relief
against all Defendants; and (6) Rescission and Restitution
against Wells Fargo and HSBC. See id.
Fargo and HSBC together moved to dismiss the SAC (WF Mot.,
Dkt. No. 109), as did First American (FA Mot., Dkt. No. 107).
Before briefing concluded on the Motions to Dismiss,
Plaintiff filed a Motion for Leave to File a TAC.
See TAC Mot., Dkt. No. 113. Plaintiff‘s
proposed TAC sought to add causes of action for (1) Wrongful
Foreclosure based on the "wrong entity foreclosing"
and "invalid substitution of trustee"; (2) a
violation of California Unfair Competition Law
("UCL"), Cal. Bus. & Prof. Code § 17200;
and (3) a violation of the Real Estate Settlement Practices
Act ("RESPA"). See Proposed TAC, Dkt. No.
the Motions to Dismiss and the Motion for Leave to File a
TAC, the Court dismissed (1) all claims based on challenges
to the Assignment and transfer of the Loan, as the Court
found Plaintiff did not have standing to challenge the
securitization of his Loan; (2) the negligence claims against
HSBC and First American; and (3) the Rosenthal Act, breach of
contract, and fraud claims against all Defendants. Order at
7-27. The Court further dismissed Plaintiff‘s
declaratory judgment and restitution claims. Id. at
27-28. The Court allowed Plaintiff‘s negligence and UCL
claims against Wells Fargo to proceed and allowed him to file
the TAC consistent with the Order. Id. at 18, 30. In
so doing, the Court warned Plaintiff that it was "not
grant[ing] Plaintiff leave to amend as to any of the other
Defendants or to add any other claims O'Connell; John
Kennerty (a Wells Fargo agent); Chet Sconyers (a Wells Fargo
agent); and Hank Duong (a First American Agent). Compl.
¶ 4. The Court granted Plaintiff and Fidelity‘s
Stipulation for Dismissal on December 24, 2014. Dkt. No. 31.
On April 29, 2016, the Court dismissed the Doe Credit
Reporting Agencies, Miles-Todd, O‘Connell, Kennerty,
Sconyers, and Duong under Rule 4(m) as there was no
indication they have been served. See Order re:
Second Mots. to Dismiss at 40, Dkt. No. 100. The Court
dismissed HSBC and First American with prejudice on March 3,
2017. Order. against Wells Fargo" and "w[ould]
strike any pleading that does not comply with this
Order." Id. at 30-31.
TAC, Plaintiff asserts negligence and UCL claims against
Wells Fargo. TAC ¶¶ 51-103. Plaintiff contends
Wells Fargo deliberately mishandled his application for a
loan modification by, among other things, repeatedly changing
his single point of contact ("SPOC") and failing to
effectively provide him with a SPOC, asking him to re-send
documents, and failing to timely acknowledge receipt his
application. Plaintiff alleges this "directly prevented
[him] of the opportunity to modify his loan."
Id. ¶ 58.
Fargo now seeks to strike portions of the TAC. Plaintiff, now
represented by counsel, opposes the Motion.
Rule of Civil Procedure 12(f) allows a court to "strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter."
Immaterial matters are "those which ha[ve] no essential
or important relationship to the claim for relief or the
defenses being pleaded." Fantasy, Inc. v.
Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),
rev'd on other grounds, 510 U.S. 517 (1994)
(internal quotation marks omitted). Impertinent matters
"do not pertain, and are not necessary, to the issues in
question." Id. (internal quotation marks
purpose of a Rule 12(f) motion "is to avoid the
expenditure of time and money that must arise from litigating
spurious issues by dispensing with those issues prior to
trial[.]" Whittlestone, Inc. v. Handi-Craft
Co., 618 F.3d 970, 973 (9th Cir. 2010) (internal
quotation marks omitted). "Motions to strike are
generally disfavored and 'should not be granted unless
the matter to be stricken clearly could have no possible
bearing on the subject of the litigation.‘"
Luxul Tech. Inc. v. NectarLux, LLC, 2015 WL 4692571,
at *3 (N.D. Cal. Aug. 6, 2015) (quoting Platte Anchor
Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D.
Cal. 2004)). The decision to grant a motion to strike
ultimately lies within the discretion of the trial court.
Rees v. PNC Bank, N.A., 308 F.RD. 266, 271-72 (N.D.
Cal. 2015) (citing Whittlestone, 618 F.3d at 973).
their briefing, the parties have narrowed their scope of the
Motion. Plaintiff "concedes that the Court has
discretion to strike paragraphs 7-11, 13-14, 18-26, 31-36,
38-50, 93, 96, and 97." Id. at 5. Having
reviewed these paragraphs, the Court finds they do not comply
with the Court‘s Order or otherwise concern immaterial
or impertinent matters. As such, the Court STRIKES paragraphs
7-11, 13-14, 18-26, 31-36, 38-50, 93, 96, and 97.
addition, "Wells Fargo no longer challenges, in its
motion to strike, paragraph 27." WF Suppl. Br. at 2 n.1,
5. The Court therefore DENIES the Motion as to paragraph 27.
the following portions of the TAC remain at issue: paragraphs
6, 12, 15-17, 28-30, 37, 95, and 103. Opp‘n at 4-5;
Reply at 2, 5.
Paragraphs 6, 12, 15, and 17
6, 12, 15, and 17 allege the following:
6. On December 20, 2005, for value received, Sandra L.
Thompson, Wells Fargo Bank, NA. Vice President Loan
Documentation signed and had notarized an Assignment of the
[Deed of Trust ("DOT")] assigning the loan to
Wachovia Bank, N.A., as Trustee ("Wachovia"). The
Assignment of DOT includes the Plaintiffs loan number for the
loan encumbering the Subject Property and the address. The
document declares that it was "prepared by and when
recorded, return to Wells Fargo." The Assignment was not
recorded. A true and correct copy of the Assignment is
attached as Exhibit C.
12. On December 30, 2005 U.S. Bank completed the purchase of
all of Wachovia Bank, N.A.‘s corporate trust services
making U.S. Bank the trustee for any securitized trust for