United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH
LEAVE TO AMEND [Doc. No. 3]
MARILYN L. HUFF, District Judge
12, 2017, Defendants Wells Fargo Bank, N.A., successor by
merger to Wells Fargo Bank Southwest, N.A., f/k/a Wachovia
Mortgage, FSB f/k/a World Savings Bank, FSB and The Bank of
New York Mellon (“Defendants”) filed a motion to
dismiss Plaintiff Patricia Cueto's
(“Plaintiff”) complaint. (Doc. No. 3.) On June
28, 2017, the Court submitted the motion on the papers. (Doc.
No. 6.) In that same order, the Court noted that
Plaintiff's opposition had not yet been filed, and
ordered the opposition to be filed on or before July 3, 2017,
with Defendant's reply, if any, due by July 10, 2017.
(Id.) To date, Plaintiff has yet to file an
opposition. For the reasons below, the Court grants
Defendant's motion to dismiss the complaint without
action arises out of Plaintiff's mortgage. On March 15,
2006, Plaintiff borrowed $420, 000.00 from World Savings
Bank, FSB (“World Savings”) and executed a Deed
of Trust to real property commonly known as 4944 Chateau Dr.,
San Diego, CA, as a security for the loan. (Doc. No. 4,
Request for Judicial Notice (“RJN”) Ex.
In January 2008, World Savings changed its name to Wachovia
Mortgage, FSB (“Wachovia Mortgage”). (Doc. No. 4,
RJN Ex. C.) In November 2009, Wachovia Mortgage changed its
name to Wells Fargo Bank Southwest, N.A., and merged into
Wells Fargo Bank, N.A. (“Wells Fargo”). (Doc.
No.4, RJN Ex. E.)
29, 2013, there was a Notice of Default and Election to Sell
under the Deed of Trust. (Doc. No. 4, RJN Ex. F.) On November
16, 2016, there was a Notice of Trustee's Sale as to
Plaintiff's property. (Doc. No. 4, RJN Ex. G.) On April
7, 2017, Plaintiff filed for bankruptcy pursuant to Chapter
13 of the United States Bankruptcy Code. (Doc. No. 4, RJN Ex.
H.) On April 25, 2017, the bankruptcy court dismissed
Plaintiff's Chapter 13 action. (Doc. No. 4, RJN Ex. I.)
25, 2017, following the dismissal of her bankruptcy action,
Plaintiff, proceeding pro se, filed a complaint in
the San Diego County Superior Court against Defendants Wells
Fargo and The Bank of New York Mellon
(“Bank of New York”), alleging causes of action
for (1) wrongful foreclosure; (2) fraud in the concealment;
(3) fraud in the inducement; (4) unconscionable contract; (5)
breach of contract; (6) breach of fiduciary duty; (7) quiet
title; (8) temporary restraining order and injunctive relief;
and (9) declaratory relief. (Doc. 1-2, Compl.) On June 6,
2017, Defendants removed the action pursuant to 28 U.S.C.
§ 1441 to this Court on the basis of diversity
jurisdiction. (Doc. No. 1, Notice of Removal.) By the present
motion, Defendants move to dismiss all of the causes of
action in Plaintiff's complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim.
(Doc. No. 3-1.)
Legal Standards for a Rule 12(b)(6) Motion to
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the pleadings and
allows a court to dismiss a complaint if the plaintiff has
failed to state a claim upon which relief can be granted.
See Conservation Force v. Salazar, 646 F.3d 1240,
1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2)
requires that a pleading stating a claim for relief contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” The function of
this pleading requirement is 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).
complaint will survive a motion to dismiss if it contains
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “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). “A pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Id. (quoting
Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). Accordingly, dismissal
for failure to state a claim is proper where the claim
“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.
reviewing a Rule 12(b)(6) motion to dismiss, a district court
must accept as true all facts alleged in the complaint, and
draw all reasonable inferences in favor of the plaintiff.
See Retail Prop. Trust v. United Bhd. of Carpenters &
Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). But a
court need not accept “legal conclusions” as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Further, it is improper for a court to assume the plaintiff
“can prove facts which it has not alleged or that the
defendants have violated the . . . laws in ways that have not
been alleged.” Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519,
526 (1983). In addition, a court may consider documents
incorporated into the complaint by reference and items that
are proper subjects of judicial notice. See Coto
Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir.
court dismisses a complaint for failure to state a claim, it
must then determine whether to grant leave to amend. See
Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
“‘A district court may deny a plaintiff leave to
amend if it determines that ‘allegation of other facts
consistent with the challenged pleading could not possibly
cure the deficiency, ' or if the plaintiff had several
opportunities to amend its complaint and repeatedly failed to
cure deficiencies.” Telesaurus VPC, LLC v.
Power, 623 F.3d 998, 1003 (9th Cir. 2010) (internal
quotation marks and citations omitted).
Lack of ...