Jacob Winding Dba Top To Bottom Cleaning Serv. v. Cal-western Reconveyance Corp.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Decision Date: 24 January 2011
• Docket Number: CASE NO. CV F 10-0041 LJO GSA
• Parties: JACOB WINDING dba TOP TO BOTTOM CLEANING SERVICE, Plaintiff, v. CAL-WESTERN RECONVEYANCE CORPORATION, et al., Defendants.

JACOB WINDING dba TOP TO BOTTOM CLEANING SERVICE, Plaintiff,
v.
CAL-WESTERN RECONVEYANCE CORPORATION, et al., Defendants.

CASE NO. CV F 10-0041 LJO GSA

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

Date: January 24, 2011

ORDER ON WELLS FARGO'S F.R.Civ.P. 12 MOTION TO DISMISS (Docs. 4, 5.)
INTRODUCTION

Defendant Wells Fargo, N.A. ("Wells Fargo") seeks to dismiss as legally barred and federally preempted pro se plaintiff Jacob Winding dba Top To Bottom Cleaning Service's ("Mr. Winding's") claims arising from foreclosure of a Modesto property ("property"). This Court considered Wells Fargo's F.R.Civ.P. 12(b)(6) motion to dismiss on the record and VACATES the February 28, 2011 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES this action against Wells Fargo.¹

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BACKGROUND
Property Loan

On November 5, 2007, World Savings Bank, FSB ("World Savings") lent $182,000 to Warner and Iris Bowers (collectively "Mr. and Mrs. Bowers") secured by a first deed of trust recorded against the property.²

World Savings, chartered as a federal savings bank, changed its name to Wachovia Mortgage, FSB on December 31, 2007 and to Wachovia Mortgage, a division of Wells Fargo, on November 1, 2009.

After the loan fell into default, Wells Fargo (at that time operating under the name Wachovia Mortgage, FSB) recorded a notice of default on December 12, 2008.

On August 18, 2009, a second deed of trust was recorded against the property and named "Jacob Winding" as trustee and "TTB Services inc [sic], a California Corporation" as beneficiary.

On December 7, 2009, Mr. and Mrs. Bowers quitclaimed their interest in the property to TTB Services Inc. On April 1, 2010, a corporation grant deed was recorded by which TTB Services Inc. purportedly conveyed the property to Top To Bottom Cleaning Service.

On July 12, 2010, defendant Cal-Western Reconveyance Corporation ("Cal-Western"), as appointed trustee under the deed of trust for the World Savings loan, recorded a notice of trustee's sale for the property. Ridge Capital Investments took title to the property at a November 5, 2010 trustee's sale.

Mr. Winding's Claims

On November 12, 2010, prior to Wells Fargo's removal to this Court, Mr. Winding filed in Stanislaus County Superior Court his complaint ("complaint") to take issue with promissory note ownership, to challenge the foreclosure sale, and to allege California property and tort claims, which will be discussed in greater detail below. The complaint seeks special, general and punitive damages and to enjoin interference with Mr. Winding's "existing business."

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DISCUSSION
F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards

Wells Fargo seeks to dismiss Mr. Winding's claims as legally barred and preempted by federal law.

"A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6).... Such dismissal may be made without notice where the claimant cannot possibly win relief." Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9^th Cir. 1987); see Wong v. Bell, 642 F.2d 359, 361-362 (9^th Cir. 1981). Sua sponte dismissal may be made before process is served on defendants. Neitzke v. Williams, 490 U.S. 319, 324 (1989) (dismissals under 28 U.S.C. § 1915(d) are often made sua sponte); Franklin v. Murphy, 745 F.2d 1221, 1226 (9^th Cir. 1984) (court may dismiss frivolous in forma pauperis action sua sponte prior to service of process on defendants).

"When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9^th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacfca Police Dept., 901 F.2d 696, 699 (9^th Cir. 1990); Graehling v. Village of Lombard, Ill, 58 F.3d 295, 297 (7^th Cir. 1995).

In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9^th Cir. 2008) (citation omitted). A court "need not assume the truth of legal conclusions cast in the form of factual allegations, " U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9^th Cir. 1986), and a court must not "assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated... laws in ways that have not

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been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to amend if "it is clear that the complaint could not be saved by an amendment." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9^th Cir. 2005).

A "plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, "a complaint... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7^th Cir. 1984)).

In Ashcroft v. Iqbal, __ U.S. _, 129 S.Ct. 1937, 1949 (2009), the U.S. Supreme Court recently explained:

... a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face."... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. (Citations omitted.)

After discussing Iqbal, the Ninth Circuit Court of Appeals summarized: "In sum, for a complaint to survive [dismissal], the non-conclusory 'factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 989 (9^th Cir. 2009) (quoting Iqbal, __ U.S. _, 129 S.Ct. at 1949).

The U.S. Supreme Court applies a "two-prong approach" to address dismissal:

First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.... Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.... But where the well-pleaded facts do not permit the court to infer

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more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, __ U.S. __, 129 S.Ct. at 1949-1950.

For a F.R.Civ.P. 12(b)(6) motion, a court generally cannot consider...