Rosal v. First Federal Bank of California

• Decision Date: 15 July 2009
• Docket Number: No. C 09-1276 PJH.,C 09-1276 PJH.
• Citation: 671 F.Supp.2d 1111
• Parties: Jeffery D. ROSAL, Plaintiff, v. FIRST FEDERAL BANK OF CALIFORNIA, et al., Defendants.
• Court: U.S. District Court — Northern District of California

671 F.Supp.2d 1111

Jeffery D. ROSAL, Plaintiff, v. FIRST FEDERAL BANK OF CALIFORNIA, et al., Defendants.

No. C 09-1276 PJH.

United States District Court, N.D. California.

July 15, 2009.

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Ronald Veridiano Uy, Law Office of Ronald V. Uy, Stevan J. Henrioulle, Law Office of Uy & Henrioulle, Oakland, CA, Kelly Marie Robinson, for Plaintiff.

Aron Philip Hochhauser, Steven Norman Richman, Epport, Richman & Robbins LLP, Los Angeles, CA, Peter Karl Wolff, Jr., Attorney at Law, Walnut Creek, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

PHYLLIS J. HAMILTON, District Judge.

Before the court is a motion to dismiss filed by defendants First Federal Bank of California ("FFB"), Seaside Financial Corporation ("Seaside"), T.D. Service Company ("T.D.") and All Phase Brokers ("All Phase"). Also before the court is a motion to dismiss filed by defendant ServiceLink. Plaintiff Jeffery Rosal ("plaintiff") opposes the motions. The court finds these matters suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b). Having read the parties' papers and considered the relevant legal authority, the court hereby GRANTS defendants' motions to dismiss, for the reasons stated below.

BACKGROUND

This action arises out of a non-judicial foreclosure sale of real property purchased by plaintiff. Plaintiff is a resident of Alameda County and purchaser of real property located at 35114 Adriano Street, Fremont, California 94536 (the "property"). First Amended Complaint ("FAC") ¶¶ 2, 11. Plaintiff financed the acquisition of the property by executing an Adjustable Rate Mortgage Note, promising to pay FFB $508,000. Id. ¶¶ 2, 22-23; ServiceLink's Request for Judicial Notice ("RJN"), Exh. A. The Note is secured by a first priority Deed of Trust against the property, dated November 17, 2005. FAC ¶ 22; ServiceLink's RJN, Exh. A. The Deed of Trust named FFB as beneficiary and Seaside as trustee. ServiceLink's RJN, Exh. A.

According to the FAC, FFB is engaged in the business of promoting, marketing, distributing and selling ARM loans, Seaside is engaged in the business of providing financial services related to home loans, T.D. is in the business of providing foreclosure services to the mortgage industry, ServiceLink is in the business of providing origination and default services, and All Phase is in the business of listing real estate properties for sale and assisting buyers and sellers with their respective real estate purchases and sales. FAC ¶¶ 2-7.

After plaintiff fell $22,036.55 in arrears on loan payments, a non-judicial foreclosure was initiated when a Notice of Default and Election to Sell Under Deed of Trust was recorded on June 4, 2008. ServiceLink's RJN, Exh. B. On October 1, 2008, a Notice of Trustee's Sale was recorded, stating that plaintiff was in default under a Deed of Trust dated November 17, 2005 as Instrument No. 2005511998 in the Official Records of Alameda County, and that the property would be subject to sale in a public auction on October 23, 2008. Id., Exh. C. On March 23, 2009, a Trustee's Deed Upon Sale was recorded, stating that the property was purchased by FFB on March 16, 2009. Id., Exh. L.

On March 24, 2009, plaintiff filed the instant action against FFB, Seaside, T.D., ServiceLink and All Phase Brokers (collectively "defendants"), alleging fifteen causes of action. On April 29, 2009, ServiceLink filed a motion to dismiss, and on May 4, 2009, FFB, Seaside, T.D. and All Phase Brokers filed a motion to dismiss. Plaintiff did not oppose these motions. Instead, on June 15, 2009, two days before the hearing on these motions, plaintiff filed an amended complaint, alleging fourteen causes of action: (1) violation of the Truth in Lending Act, 15 U.S.C. § 1611 et seq. ("TILA"); (2) violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 et seq. ("RESPA"); (3) violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. ("ECOA"); (4) violation of California's Unfair Competition Law, Bus. & Prof.Code § 17200 et seq. ("UCL"); (5) breach of fiduciary duty; (6) breach of the implied covenant of good faith and fair dealing; (7) promissory estoppel; (8) fraud by intentional misrepresentation; (9) fraud by concealment; (10) restitution for unjust enrichment; (11) violation of California's False Advertising Law, Bus. & Prof.Code § 17500 et seq. ("FAL"); (12) violation of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ.Code § 1788 et seq. ("RFDCPA"); (13) cancellation of void instrument; and (14) injunctive relief. See FAC.¹ The FAC, among other things, deleted a cause of action for civil conspiracy and added allegations related to equitable tolling.

Plaintiff did not attend the hearing held on June 17, 2009, at which the court granted defendants' motions to dismiss, for the reasons stated on the record. The court also, in light of the filing of the FAC and defendants' stated intent to seek dismissal of the FAC, ordered an expedited briefing schedule on defendants' motions to dismiss the FAC.

On June 24, 2009, defendants filed motions to dismiss the FAC. On June 1, 2009, plaintiff filed an opposition. Replies were filed on July 7, 2009.

DISCUSSION

A. Standard

"A Rule 12(b)(6) motion tests the legal sufficiency of a claim. A claim may be dismissed only `if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal pursuant to Rule 12(b)(6) is appropriate where there is no cognizable legal theory or there is an absence of sufficient facts alleged to support a cognizable legal theory. Id. The issue is not whether a plaintiff is likely to succeed on the merits but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his or her claims. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978).

In evaluating a motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See, e.g., Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.2000) (citations omitted). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). Nor do courts assume the truth of legal conclusions merely because they are cast in the form of factual allegations, Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), or that a plaintiff can prove facts different from those it has alleged. Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8. Rule 8 requires only that the complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P 8(a)(2). Specific facts are unnecessary—the statement need only give the defendant "fair notice of the claim and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In order to survive a motion to dismiss, a plaintiff must allege facts that are enough to raise her right to relief "above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. While the complaint "does not need detailed factual allegations," it is nonetheless "a plaintiffs obligation to provide the `grounds' of his `entitlement to relief [which] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. In short, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face," not just conceivable. Id. at 570, 127 S.Ct. 1955.

A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, ___ U.S ___, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Two working principles underlie Twombly: (1) the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements; and (2) determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955). In considering a motion to dismiss, a court may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. Iqbal, 129 S.Ct. at 1940. Legal conclusions can provide the complaint's framework, but they must be supported by factual allegations. Id. When a complaint contains well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 1940-41.

In addition, when resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). An exception to this rule is that a court may consider a matter that is properly the subject of judicial notice, such as matters of public record. Id. at 689; see also Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986) (on a...