United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
J. DAVILA, UNITED STATES DISTRICT JUDGE.
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.
Fargo N.A. 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.
pending before the Court is Wells Fargo N.A.'s motion to
dismiss the First Amended Complaint (“FAC”)
without leave to amend. 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.
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.
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,
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. ¶¶
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
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)).
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.”
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).