United States District Court, C.D. California
J.D. DAVIS, Plaintiff,
CITIMORTGAGE, INC.; CLEAR RECON CORP.; and DOES 1-25, inclusive, Defendants
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 
AND GRANTING INTERVENOR'S MOTION TO EXPUNGE LIS PENDENS
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
the Court are (1) Defendant CitiMortgage, Inc.'s
(“CitiMortgage”) Motion to Dismiss Plaintiff J.D.
Davis's Second Amended Complaint (“SAC”)
(Mot. to Dismiss (“MTD”), ECF No. 36), and (2)
Intervenor Wilshire Investment Group, LLC's
(“Wilshire”) Motion to Expunge Lis Pendens and
Claim for Attorney Fees and Costs. (Mot. to Expunge
(“MTE”), ECF No. 35.) For the reasons below, the
Court GRANTS CitiMortgage's Motion to
Dismiss and GRANTS Wilshire's Motion to
Expunge Lis Pendens.
claims arise from a home mortgage loan secured against a
property in Los Angeles, California (the
“Property”). (Second Amended Complaint
(“SAC”), ECF No. 33.) Plaintiff obtained the
mortgage loan from Coast 2 Coast Funding Group, Inc. on June
16, 2009. (Id. at 9.) Plaintiff defaulted on the
loan in, or around, January 2010. (Id. at 9.)
CitiMortgage subsequently acquired the loan in, or around,
April 2010. (Id. at 10.) Clear Recon Corporation
(“Clear Recon”), acting as trustee under the deed
of trust, executed and subsequently recorded a Notice of
Default on the loan on March 7, 2017. (Id. at 12.)
On June 19, 2017, Clear Recon executed and recorded a Notice
of Trustee's sale. (Id. at 12.) The Property was
sold at a trustee's sale on August 3, 2017. (Id.
at 12.) Wilshire purchased the Property at the trustee's
sale. (Trustee's Deed Upon Sale (“TDUS”), Ex.
H, ECF No. 33.)
initiated this case against CitiMortgage and Clear Recon in
Los Angeles County Superior Court on August 11, 2017.
(See Not. Removal, Ex. A, ECF No. 1-1.) CitiMortgage
removed the case to this Court on September 18, 2017. (Not.
Removal.) On September 25, 2017, CitiMortgage moved to
dismiss Plaintiff's Complaint pursuant to Federal Rules
of Civil Procedure 8 and 12(b)(6). (ECF No. 10.) In response,
on October 18, 2017, Plaintiff filed a First Amended
Complaint (“FAC”). (FAC, ECF No. 12.)
CitiMortgage moved to dismiss again (ECF No. 24), and on
February 1, 2018, the Court granted the motion. (Order, ECF
No. 32.) The Court granted the Motion as to each cause of
action but permitted Plaintiff leave to amend as to all
claims except the cause of action brought under section 3118
of the California Commercial Code. (Order 6.) On February 16,
2018, Plaintiff filed the Second Amended Complaint
(“SAC”), alleging claims for (1) violation of
section 1692f(b) of the Fair Debt Collection Practices Act
(“FDCPA”); (2) wrongful foreclosure; (3)
violation of California Civil Code section 2934a; (4)
cancellation of instruments; (5) negligent misrepresentation;
and (6) violation of California Business and Professions Code
section 17200 (“UCL”). (See generally
Recon has not appeared in this action, and Plaintiff has not
submitted any evidence that Clear Recon has been served. The
Court granted Wilshire's application to intervene in this
action on November 15, 2017. (ECF No. 22.) CitiMortgage now
moves to dismiss Plaintiff's SAC in its entirety
(see MTD), and Wilshire moves to expunge lis
pendens. (See MTE.)
Motion to Dismiss
may dismiss a complaint under Rule 12(b)(6) for lack of a
cognizable legal theory or insufficient facts pleaded to
support an otherwise cognizable legal theory. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). To survive a motion to dismiss, a complaint need
only satisfy the minimal notice pleading requirements of Rule
8(a)(2)-a short and plain statement of the claim. Porter
v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual
“allegations must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). That is, the
complaint must “contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
determination whether a complaint satisfies the plausibility
standard is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679. A court is generally
limited to the pleadings and must construe all “factual
allegations set forth in the complaint . . . as true and . .
. in the light most favorable” to the plaintiff.
Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.
2001). But a court need not blindly accept conclusory
allegations, unwarranted deductions of fact, and unreasonable
inferences. Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001). However, for a pro se
plaintiff, the complaint is to be liberally construed and
“must be held to less stringent standards than formal
pleadings drafted by lawyers.'” Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
district court grants a motion to dismiss, it should provide
leave to amend unless it is clear that the complaint could
not be saved by any amendment. Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008) (“Dismissal without leave to amend is improper
unless it is clear . . . that the complaint could not be
saved by any amendment.”). Leave to amend, however,
“is properly denied . . . if amendment would be
futile.” Carrico v. City & Cnty. of San
Francisco, 656 F.3d 1002, 1008 (9th Cir.2011).
Motion to Expunge
California statutory lis pendens scheme extends to the
federal district courts. Cal. Civ. Proc. Code § 405.5;
Formula, Inc. v. Superior Court, 168 Cal.App.4th
1455, 1463 n.9 (2008). Thus, “[f]ederal courts look to
state law regarding matters pertaining to lis pendens.”
Balagapo v. GMAC Mortg., LLC, No.
2:09-cv-00405-JAM-GGH, 2010 WL 144108, at *1 (E.D. Cal. Jan.
8, 2010) (citing 28 U.S.C. § 1964). Courts in this
district apply California law when ruling on a motion to
expunge a lis pendens. Ritchie v. Cmty. Lending
Corp., No. CV 09-02484 DDP ...