Martin v. Wells Fargo Bank, N.A.

          ORDER GRANTING MOTION TO DISMISS RE: DKT. NO. 57

          EDWARD J. DAVILA, UNITED STATES DISTRICT JUDGE.

         Pro se plaintiff Rudy Martin (“Plaintiff”) filed this action against defendants Wells Fargo Bank, N.A. (“Wells Fargo N.A.”) and Does 1-20 (collectively “Defendants”) in the Monterey County Superior Court. Dkt. No. 1, Ex. A. Plaintiff is the alleged owner of a certain parcel of real property located in Pebble Beach, California and seeks to quiet title to the property. Wells Fargo N.A. has a mortgage recorded on the property.

         Wells Fargo N.A.^[1] removed the action to federal court asserting diversity jurisdiction. In November of 2019, Magistrate Judge DeMarchi issued an “Order For Reassignment; Report And Recommendation Denying Motion To Remand And Granting Motion To Dismiss With Leave To Amend” (“Report and Recommendation”). Dkt. No. 38. The Court thereafter adopted the Report and Recommendation (Dkt. No. 44) and granted Plaintiff leave to amend certain claims. When Plaintiff failed to file an amended complaint by the filing deadline, the Court issued an Order to Show Cause. Dkt. No. 45. When Plaintiff failed to file a response to the Order to Show Cause, the Court dismissed the action and entered judgment. Dkt. No. 47. Plaintiff filed a motion for relief from the order and judgment, which the Court granted. Dkt. No. 55. Plaintiff filed a First Amended Complaint on July 9, 2019. Dkt. No. 56.

         Presently pending before the Court is Wells Fargo N.A.'s motion to dismiss the First Amended Complaint (“FAC”) without leave to amend.^[2] Dkt. No. 57. When Plaintiff failed to file any response to the motion, the Court issued an Order to Show Cause. Dkt. No. 64. In response, Plaintiff filed an opposition brief and affidavit on December 31, 2019. Dkt. No. 65. The Court finds it appropriate to take the matter under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated below, the Court will grant the motion to dismiss.

         I. BACKGROUND^[3]

         Plaintiff is the alleged owner of property located at 2967 Cormorant Road, Pebble Beach, California 93953 (“property”). FAC ¶¶ 1, 10. In 2006, Plaintiff entered into a mortgage agreement (“AGREEMENT”) with a banking entity known as “Wells Fargo Bank” or “Wells Fargo & Company.” Id. ¶¶ 2, 21, 22; Pl.'s Affidavit ¶ 1. In 2007, Plaintiff entered into a revised loan with Wells Fargo N.A. Def.'s Req. For Judicial Notice, Ex. A (Initial Interest Adjustable Rate Note). The 2007 revised loan essentially provided for interest only payments through May of 2017, and for principal and interest payments thereafter until the maturity date of the loan. Req. For Judicial Notice, Ex. A. The 2007 revised loan was secured by a Deed of Trust. Req. For Judicial Notice, Ex. B. The Deed of Trust identifies Wells Fargo N.A. as the “Lender” and recites that the Deed of Trust “secures to the Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements.” Id. The Deed of Trust also recites that “[f]or this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale” the property. Id.

         In 2016, Plaintiff discovered that Wells Fargo N.A. had made unspecified “charges” on Plaintiff's account “that were not agreed upon nor covered under any agreement.” Id. ¶ 6. Wells Fargo N.A. “acknowledged inappropriate charges had been made and would be corrected.” Id. In October 2017, Plaintiff met with Wells Fargo N.A. and was informed that “more inappropriate charges were uncovered.” Id. ¶ 7. Wells Fargo N.A. told Plaintiff that “no further late charges would be charged to Plaintiff's [account] and payments would not be charged until the appropriate payment amounts could be calculated.” Id. ¶¶ 7, 12. Wells Fargo N.A. promised to provide a detailed list of errors that it had uncovered. Id. Wells Fargo N.A. also promised that this list, “along with details of the charges to be reconciled would be produced” to Plaintiff. Id. ¶ 7; see also ¶ 11 (“the local Wells Fargo N.A. employees stated they would insure the PLAINTIFF would not be charged anything, including not any late fees, while the investigation of all the inexplicable charges and increases in the monthly charges were fully explained . . . and were reconciled as to an appropriate monthly loan payment that PLAINTIFF would be charged.”); ¶ 42 (Defendants promised that they “would reverse charges/fees made prior to December 2017 and not add charges/fees subsequent to December 2017.”). Wells Fargo orally promised to review and research a list of erroneous charges/fees and to provide Plaintiff with a detailed analysis of the same. Id. ¶¶ 8, 42, 49. Wells Fargo N.A. also orally promised that it would not initiate foreclosure “during the reconciliation of the questioned charges/fees.” Id. ¶¶ 42, 49. Despite the various alleged agreements, Wells Fargo N.A. never reconciled the errors and continued to assess charges. Id. ¶¶ 7-8, 10.

         Plaintiff made several attempts to resolve the allegedly improper charges to no avail. In April of 2016, Plaintiff spoke to an employee named Felicia Foo. Id. ¶ 11. In December of 2016, Plaintiff spoke to an employee named Mark. Id. In February of 2018, Plaintiff spoke to Wells Fargo N.A. representative Theresa Angela. Id. In March of 2018, Plaintiff communicated with Wells Fargo N.A. representative Olliesha Talton. Id. In April and May of 2018, Plaintiff communicated with Christi Hopper, Shante Rubi, and Aaron Burger. Id. Eventually, an unidentified Wells Fargo N.A. representative told Plaintiff that the charges were proper. Id. Wells Fargo N.A. is now seeking to take title to Plaintiff's property through foreclosure proceedings. Id. ¶¶ 10, 22.^[4]

         Based on the foregoing allegations, Plaintiff asserts causes of action for: (1) breach of contract; (2) breach of the implied covenant; (3) quiet title; (4) fraudulent inducement; (5) promise without intent to perform; (6) fraud and intentional deceit.

         II. STANDARDS

         Federal 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 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may therefore 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). When deciding whether to grant a motion to dismiss, the court must accept as true all “well pleaded factual allegations” and determine whether the allegations “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). While a complaint need not contain detailed factual allegations, it “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         Federal Rule of Civil Procedure 9(b) requires that allegations of fraud be stated with particularity. Specifically, averments of fraud must “be accompanied by ‘the who, what, when, where, and how' of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). When an “entire claim within a complaint[ ] is grounded in fraud and its allegations fail to satisfy the heightened pleading requirements of Rule 9(b), a district court may dismiss the . . . claim.” Id. at 1107. A motion to dismiss a complaint under Rule 9(b) for failure to plead with particularity is “the functional equivalent of a motion to dismiss under Rule 12(b)(6) for failure to state a claim.” Id.

         Where a plaintiff appears pro se, as in this case, “the court must construe the pleadings liberally and must afford the plaintiff the benefit of any doubt.” Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The Court, however, “need not give a plaintiff the benefit of every conceivable doubt” but “is required only to draw every reasonable or warranted factual inference in the plaintiff's favor.” McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974). “A pro se litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear that the deficiencies of the complaint could not be cured by amendment.'” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per curiam)), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)) (en banc); accord Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987).

         III. ...