United States District Court, S.D. California
ORDER ON MOTION TO DISMISS FIRST AMENDED COMPLAINT
[DOC. NO. 17]
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE
17, 2019, Defendants Wells Fargo Bank, N.A. and the Bank of
New York Mellon as Trustee, for the Certificate Holders of
the REMIC 16 Trust (“Defendants”) filed a motion
to dismiss Plaintiff's First Amended Complaint. [Doc. No.
17.] On June 24, 2019, Plaintiff filed an opposition to the
motion. [Doc. No. 20.] For the reasons set forth below, the
motion to dismiss the First Amended Complaint
(“FAC”) is GRANTED.
original complaint was filed in state court on November 30,
2018, and then removed to federal court by Defendants. [Doc.
No. 1.] Plaintiff, who is pro se, filed the original
complaint on behalf of herself and Monireh Bozorgi. On
January 9, 2019, Defendants filed a motion to dismiss the
original complaint for failure to state a claim.
No. 3.] After granting Plaintiff numerous extensions of time
to file an opposition to the original motion to dismiss [Doc.
Nos. 5 and 7] and conducting a hearing, the Court granted the
original motion to dismiss and gave Plaintiff leave to file
an amended complaint. [Doc. Nos. 12, 13.] The Court explained
to Plaintiff that she could only bring her own claims and, as
a pro se, could not represent Ms. Bozorgi.
April 18, 2019, Plaintiff requested an extension of time to
file an amended complaint. [Doc. No. 14.] On April 22, 2019,
the Court granted Plaintiffs request for an extension of time
to file an amended complaint. [Doc. No. 15.] On May 3, 2019,
Plaintiff filed an amended complaint, which does not include
Ms. Bozorgi as a plaintiff in the caption. [Doc. No.
17, 2019, Defendants filed a motion to dismiss the first
amended complaint for failure to state a claim. [Doc. Nos.
17, 18.] Plaintiffs opposition was due on June 7, 2019. On
June 24, 2019, seventeen days after it was due, Plaintiff
filed an opposition. [Doc. No. 20.]
FOR JUDICIAL NOTICE
request that the Court take judicial notice of the following
documents pursuant to Federal Rule of Evidence Rule 201:
□ Exhibit A: Deed of Trust executed by
Plaintiff Pirahanchi-Nazemi on November 11, 2005 and recorded
on November 29, 2005 in the Official Records of San Diego
County at Document No. 2005-1026359;
□ Exhibit B: Notice of Default
directed to Plaintiff Pirahanchi-Nazemi and recorded on July
10, 2017 in the Official Records of San Diego County at
Document No. 2017-308520.
□ Exhibit C: Declaration of Farrah
Pirananchi-Nazemi filed on July 11, 2008 in the U.S.
Bankruptcy Court Southern District of California at case no
[Doc. No. 18.]
motion to dismiss stage a court may consider materials
incorporated into the complaint or matters of public record,
without converting the motion to dismiss into a motion for
summary judgment. Coto Settlement v. Eisenberg. 593
F.3d 1031, 1038 (9th Cir. 2010) (citation omitted);
United States v. Ritchie, 432 F.3d 903, 908 (9th
Cir. 2003) (“The defendant may offer such a document,
and the district court may treat such a document as part of
the complaint, and thus may assume that its contents are true
for purposes of a motion to dismiss under Rule
12(b)(6).”). The Ninth Circuit has extended the
“incorporation by reference” doctrine to take
into account documents “whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the [plaintiff's]
pleading.” Id.; See Knievel v. ESPN,
393 F.3d 1068, 1076 (9th Cir. 2005); see also Van Buskirk
v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Parrino
v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). The
court may disregard allegations in a complaint that are
contradicted by matters properly subject to judicial notice.
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010). See also ...