United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
Eric Allen's second amended complaint asserts eight
causes of action against Ocwen Loan Servicing, LLC
(“Ocwen”), Wells Fargo Bank, N.A. (“Wells
Fargo”), Deutsche Bank National Trust Company
(“DB”), and Does 1-100 arising out of a loan on
the property at 424 Violet Road, Hercules, CA 94547
(“Subject Property”). (Dkt. No. 54
12, 2019, the Court granted motions by Wells Fargo as well as
Ocwen and DB to dismiss plaintiff's first amended
complaint and provided plaintiff leave to amend with respect
to select claims. (Dkt. No. 51 (“MTD Order”).)
Now before the Court is Wells Fargo's motion to dismiss
plaintiff's second amended complaint
(“SAC”). (Dkt. No. 55 (“MTD”).) Having
carefully considered the pleadings and the papers submitted,
and for the reasons set forth more fully below, the Court
Grants defendant's motion to dismiss.
background giving rise to this action is well-known, and the
Court will not repeat it here. (See MTD Order at
2-7.) Plaintiff's SAC includes a handful of additional
allegations. (Compare Dkt. No. 35 with
SAC.) The SAC includes the following new introductory
1. Plaintiff homeowner has filed suit seeking redress for
claims arising out of breaches of contract (written and
verbal agreements), negligent misrepresentation, negligence,
promissory estoppel, violation of Cal. Civil Code §
2923.7, violation of 15 U.S.C. § 1601; and violation of
12 U.S.C. § 2605, as will be set forth below.
2. This action is of a civil nature. Plaintiff is informed
and believes that this Court has jurisdiction over this case
pursuant to 28 U.S.C. § 1331.
3. Venue is proper pursuant to 28 U.S.C. § 1391(a)(2)
because the unlawful conduct is alleged to have occurred in
Contra Costa County, California and Plaintiffs' home
which is the subject of this litigation is located in Contra
Costa County, California. Therefore, jurisdiction and venue
is [sic] properly with this Court.
¶¶ 1-3.) Plaintiff adds only one new assertion to
the “General Allegations” section of his SAC:
“Plaintiff was an account holder and customer of Wells
Fargo at the time of the payment incident on June 23, 2014
should have called him and been able to call him to tell him
my payment was not credited toward his loan. Although Wells
Fargo claimed they did not have his telephone number or any
way to contact him about his payment, that is a false, and
knowingly false statement.” (Id. ¶ 18
(quoted verbatim).) The Court addresses plaintiff's
additional cause-of-action-specific allegations as it
evaluates each of those claims below.
Rule of Civil Procedure 8(a) requires a plaintiff to plead
each claim with sufficient specificity to “give the
defendant fair notice of what the . . . claim is and the
ground upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks omitted). The factual allegations in the complaint
“must be enough to raise a right to relief above the
speculative level” such that the claim “is
plausible on its face.” Id. at 556-57.
Moreover, a plaintiff suing multiple defendants “must
allege the basis of his claim against each defendant to
satisfy Federal Rule of Civil Procedure 8(a)(2) . . .
.” Gauvin v. Trombatore, 682 F.Supp. 1067,
1071 (N.D. Cal. 1988). “Specific identification of the
parties to the activities alleged by the plaintiff is
required . . . to enable [a] defendant to plead
intelligently.” Herrejon v. Ocwen Loan Servicing,
LLC, 980 F.Supp.2d 1186, 1196 (E.D. Cal. 2013) (internal
quotation marks omitted).
complaint that falls short of the Rule 8(a) standard may be
dismissed if it fails to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(b)(6). “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).
For purposes of ruling on a Rule 12(b)(6) motion, the Court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
a nonmoving party.” Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Shwarz
v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and
it “may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion to a motion for summary judgment, Shaw v.
Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor must
the Court “assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (internal quotation marks
omitted). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004).
court determines that a complaint should be dismissed, it
should give leave to amend unless “the pleading could
not possibly be cured by the allegation of other
facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal.
Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.
1990). In making this determination, a court must bear in
mind “the underlying purpose of Rule 15 to facilitate
decisions on the merits, rather than on the pleadings or