Pierre W. Nsilu v. Wells Fargo Bank, N.A. et al, No. 2:2018cv10433 - Document 20 (C.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANT WELLS FARGO BANK, N.A.S MOTION TO DISMISS THE FIRSTAMENDED COMPLAINT WITH PREJUDICE 14 by Judge Otis D. Wright, II (lc)
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Pierre W. Nsilu v. Wells Fargo Bank, N.A. et al Doc. 20 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 PIERRE W. NSILU, Plaintiff, 12 v. 13 14 15 16 Case No. 2:18-cv-10433-ODW(Ex) WELLS FARGO BANK, N.A., et al., Defendants. I. 17 ORDER GRANTING DEFENDANT WELLS FARGO BANK, N.A.’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT [14] INTRODUCTION 18 Presently before the Court is Defendant Wells Fargo Bank, N.A.’s Motion to 19 Dismiss Plaintiff Pierre W. Nsilu’s First Amended Complaint for failure to state a 20 claim under Federal Rules of Civil Procedure 12(b)(6). (Mot. to Dismiss (“Mot.”), 21 ECF No. 14.) The instant suit represents Plaintiff’s second lawsuit against Defendant, 22 arising from what he alleges was the wrongful foreclosure of his home. (See First 23 Am. Compl. (“FAC”), ECF No. 11.) For the following reasons, Defendant’s Motion 24 to Dismiss is GRANTED with PREJUDICE.1 25 26 27 28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Dockets.Justia.com II. 1 BACKGROUND 2 On May 2, 2008, Plaintiff obtained a mortgage loan from Wells Fargo Bank, 3 N.A. with Dee Dee Tulanda, who did not join in this suit. (See Req. for Judicial 4 Notice (“RJN”) Ex. A (“WF Deed of Trust”), ECF No. 15-1.) Plaintiff secured this 5 loan of $417,000.00 with a first position Deed of Trust on Plaintiff’s real property at 6 575 East 213th Street, Carson, California, 90745 (“Property”). (see WF Deed of 7 Trust 2, 3; FAC ¶¶ 12–13.) Defendant recorded the deed on June 6, 2008. (WF Deed 8 of Trust.) On May 29, 2008, Plaintiff obtained a second loan, borrowing $199,000.00 9 from Wachovia Bank, N.A., also secured by a Deed of Trust of Plaintiff’s Property. 10 (RJN Ex. C (“Wachovia Deed of Trust”) 1, ECF No. 15-1.) Wachovia recorded the 11 deed on June 3, 2008. (Wachovia Deed of Trust.) However, Plaintiff’s FAC makes 12 no claims regarding the second position loan. (See generally FAC.) 13 On September 1, 2010, Plaintiff defaulted on the first position loan with 14 Defendant, which had accrued arrears in the amount of $206,309.92. (RJN Ex. D 15 (“Notice of Default”) 2, ECF No. 15-1.) However, the Notice of Default was not 16 recorded until March 14, 2016. (Notice of Default 1.) In November 2011, Plaintiff 17 entered into a forbearance agreement with Defendant. (FAC ¶¶ 17–18.) From this 18 time until April 2013, Plaintiff repeatedly attempted to modify his loan but was 19 unsuccessful. (Id.) 20 Between 2012 and 2016, the first position loan of $417,000.00 was assigned 21 three separate times. (RJN Exs. E (“2011 Assignment”), F (“2013 Assignment”), G 22 (“2016 Assignment”), ECF No. 15-1.) First, on December 16, 2011, Wells Fargo 23 assigned the Deed of Trust to Federal Home Loan Mortgage Corporation (“FHLMC”) 24 who recorded the loan on January 6, 2012. (2011 Assignment.) Second, on October 7, 25 2013, FHLMC assigned the Deed of Trust to Defendant, who recorded it on October 26 17, 2013. (2013 Assignment.) Third, on April 8, 2016, Defendant assigned the Deed 27 of Trust to Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, not 28 individually but as trustee for Pretium Mortgage Acquisition Trust (“Wilmington”). 2 1 (2016 Assignment.) The third assignment was recorded on June 6, 2016, after which 2 Defendant retained no further interest in the loan. (2016 Assignment.) 3 On September 2, 2016, Clear Recon Corp recorded a Notice of Trustee’s Sale 4 and set a Trustee’s sale for October 11, 2016. (RJN Ex. H (“First Notice of Trustee’s 5 Sale”), ECF No. 15-1.) 6 Plaintiff filed for bankruptcy twice in 2017, first on January 23, 2017, and again 7 on February 14, 2017. (RJN Exs. I (“January 2017 BK Docket”) & J (“February 2017 8 BK Docket”), ECF No. 15-1.) Both bankruptcy filings were dismissed for failure to 9 file information. (Id.) 10 On March 16, 2017, Plaintiff filed a complaint against Defendant in the 11 Superior Court of California, County of Los Angeles, where he alleged: (1) violation 12 of California Homeowner Bill of Rights; (2) statutory Unfair Competition—California 13 Business and Professions Code § 17200, et seq.; (3) breach of the covenant of good 14 faith and fair dealing; and (4) negligence. (“First Action”); RJN Ex. K (“First Action 15 Complaint”), ECF No. 15-1.) Plaintiff then voluntarily dismissed the First Action 16 with prejudice on July 21, 2017. (RJN Ex. L (“First Action Request for Dismissal”), 17 ECF No. 15-1.) 18 On September 4, 2018, Clear Recon Corp recorded a Notice of Trustee’s Sale, 19 which set a new sale date of October 9, 2018. (RJN Ex. M (“Notice of Trustee’s 20 Sale”), ECF No. 15-1.) However, on October 8, 2018, one day prior to the Trustee’s 21 sale, Plaintiff filed his third bankruptcy petition. (RJN Ex. O (“Voluntary Bankruptcy 22 Petition”), ECF Nos. 15-2–15-3.) 23 previously filed claim or any remaining potential claims against Defendant. 24 (“Voluntary Bankruptcy Petition”, Ex. O, at 17.) (requiring that petitioner schedule 25 “[c]laims against third parties, whether or not you have filed a lawsuit or made a 26 demand for payment.”) In his petition, Plaintiff did not disclose his 27 On November 1, 2018, Wilmington moved for relief from the automatic stay. 28 (RJN Ex. P (“Notice of Motion and Motion for Relief From the Automatic Stay”), 3 1 ECF No. 15-4.) On November 29, 2018, the United States Bankruptcy Court for the 2 Central District of California granted Wilmington’s unopposed motion for relief. 3 (RJN Ex. Q (“Order Relief From Automatic Stay”), ECF No. 15-4.) On November 4 13, 2018, Plaintiff discharged his debt, and on January 23, 2019, the court closed 5 Plaintiff’s bankruptcy case. (See RJN Ex. N “Bankruptcy Case Docket, No. 2:18-bk- 6 21796-RK), ECF No. 15-4.) 7 Plaintiff claims the Property was sold at the Trustee sale on December 18, 2019. 8 (FAC ¶ 24.) Given this apparent typographical error and the context presented by the 9 record, the Court considers December 18, 2018 as the date of the Trustee Sale, even 10 though further documentation of the sale was not provided. 11 On December 17, 2018, Plaintiff again brought suit against Defendant, this time 12 in the United States District Court, Central District of California. (Compl., ECF 13 No. 1.) Plaintiff amended his Complaint on January 9, 2019, after Defendant moved 14 to dismiss. (See FAC; Mot. to Dismiss, ECF No. 7.) The Court subsequently denied 15 Defendant’s first motion to dismiss Plaintiff’s Complaint as moot. (Minute Order, 16 ECF No. 17.) In his FAC, Plaintiff asserts the following claims: (1) negligence; (2) to 17 set aside trustee sale; (3) cancel assignment of deed of trust; (4) breach of contract; (5) 18 violation of California Business and Profession Code section 17200, et seq.; (6) 19 slander of title; and (7) quiet title. (FAC ¶¶ 26-66.) 20 21 22 On January 25, 2019, Defendant moved to dismiss Plaintiff’s FAC. (See generally Mot.) III. LEGAL STANDARD 23 “To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), 24 a complaint generally must satisfy only the minimal notice pleading requirements of 25 Rule 8(a)(2).” Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) 26 requires “a short and plain statement of the claim showing that the pleader is entitled 27 to relief.” Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its 28 “[f]actual allegations must be enough to raise a right to relief above the speculative 4 1 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal under a 2 12(b)(6) motion can be based on lack of a cognizable legal theory or “the absence of 3 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 4 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 complaint must contain sufficient factual matter, accepted as true, to state a claim to 6 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (internal quotation marks omitted). The plausibility standard “asks for more than a 8 sheer possibility that a defendant has acted unlawfully. Where a complaint pleads 9 facts that are merely consistent with a defendant’s liability, it stops short of the line 10 between possibility and plausibility of entitlement of relief.” Id. (citations and internal 11 quotation marks omitted). To overcome a 12(b)(6) motion, “a 12 Although pro se pleadings must be construed liberally, a plaintiff must present 13 factual allegations sufficient to state a plausible claim for relief. See Hebbe v. Pliler, 14 627 F.3d 338, 342 (9th Cir. 2010). A court “may not supply essential elements of the 15 claim that were not initially [pleaded].” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 16 1992). Moreover, a liberal reading cannot cure the absence of such facts. Ivey v. Bd. 17 of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). IV. 18 DISCUSSION 19 Defendant argues that Plaintiff’s claims are barred by res judicata and judicial 20 estoppel. (See generally Mot.) Additionally, Defendant requests the Court take 21 Judicial Notice of several documents. 22 addresses whether judicial notice is appropriate before turning to the merits of 23 Defendant’s Motion. 24 A. (See RJN.) Accordingly, the Court first REQUEST FOR JUDICIAL NOTICE 25 Although a court is generally limited to the pleadings in ruling on a Rule 26 12(b)(6) motion, it may consider documents incorporated by reference in the 27 complaint or properly subject to judicial notice without converting the motion into one 28 for summary judgment. Lee, 250 F.3d at 688–89. Federal Rule of Evidence 201 5 1 provides: “[t]he court may judicially notice a fact that is not subject to reasonable 2 dispute because it: (1) is generally known within the trial court’s territorial 3 jurisdiction; or (2) can be accurately and readily determined from sources whose 4 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts may take 5 judicial notice of government documents and public records. See Peruta v. Cty. of 6 San Diego, 678 F. Supp. 2d 1046, 1054 n.8 (S.D. Cal. 2010) (stating that courts may 7 properly take judicial notice of undisputed documents appearing on governmental 8 websites); see also Miller v. Cal. Reconveyance Co., No. 10-cv-421-IEG (CAB), 2010 9 WL 2889103, at *3 n.1 (S.D. Cal. July 22, 2010) (“The [c]ourt will take judicial 10 notice of the P & A Agreement between JPMorgan and the FDIC . . . because this 11 agreement is a matter of public record whose accuracy cannot reasonably be 12 questioned.”). 13 14 In support of its Motion to Dismiss, Defendant requests that the Court take judicial notice of the following documents, pursuant to Federal Rule of Evidence 201: 15 • (A) Deed of Trust in favor of Wells Fargo Bank, N.A., dated May 2, 2008, and 16 recorded on June 3, 2008, in the Los Angeles County Recorder’s Office as 17 Document No. 20080974805; 18 • (B) Agreement of Merger of Wells Fargo Home Mortgage, Inc. into Wells 19 Fargo Bank National Association, filed with California Secretary of State on 20 May 5, 2004; 21 • (C) Deed of Trust in favor of Wachovia Bank, National Association, dated May 22 29, 2008, and recorded on June 3, 2008, in the Los Angeles County Recorder’s 23 Office as Document No. 20080974806; 24 25 • (D) Notice of Default, dated March 14, 2016, and recorded on March 16, 2016, in the Los Angeles County Recorder’s Office as Document No. 20160286670; 26 • (E) Corporate Assignment of Deed of Trust dated December 16, 2011, and 27 recorded on January 6, 2012, in the Los Angeles County Recorder’s Office as 28 Document No. 20120022273; 6 1 • (F) Corporate Assignment of Deed of Trust dated October 7, 2013, and 2 recorded on October 17, 2013, in the Los Angeles County Recorder’s Office as 3 Document No. 20131489130; 4 • (G) Corporate Assignment of Deed of Trust dated April 8, 2016, and recorded 5 on June 6, 2016, in the Los Angeles County Recorder’s Office as Document 6 No. 20160645376; 7 • (H) Notice of Trustee’s Sale, dated August 30, 2016, and recorded on 8 September 4, 2016, in the Los Angeles County Recorder’s Office as Document 9 No. 20161056783;2 10 • (I) Bankruptcy Docket relating to Plaintiff’s Voluntary Chapter 13 bankruptcy 11 filed on January 23, 2017, with the United States Bankruptcy Court, Central 12 District of California (Los Angeles), Case No. 2:17-bk-10790-SK; 13 • (J) Bankruptcy Docket relating to Plaintiff’s Voluntary Chapter 13 bankruptcy 14 filed on February 14, 2017, with the United States Bankruptcy Court, Central 15 District of California (Los Angeles), Case No. 2:17-bk-11793-WB; • (K) Complaint filed by Plaintiff on March 16, 2017, with the Los Angeles 16 County Superior Court, Case No. TC028738; 17 • (L) Request for Dismissal with prejudice filed by Plaintiff on July 21, 2017, 18 with the Los Angeles County Superior Court, Case No. TC028738; 19 20 • (M) Notice of Trustee’s Sale, dated August 28, 2018, and recorded on 21 September 4, 2018, in the Los Angeles County Recorder’s Office as Document 22 No. 20180889262; 23 • (N) Bankruptcy Docket relating to Pierre Nsilu’s Voluntary Chapter 7 24 bankruptcy filed on October 8, 2018, with the United States Bankruptcy Court, 25 Central District of California (Los Angeles), Case No. 2:18-bk-21796-RK; 26 27 28 2 The Court notes that the RJN indicates the Notice was recorded on September 4, 2018. However, the Notice was actually recorded on September 2, 2016. 7 1 • (O) Petition and Schedules relating Pierre Nsilu’s Voluntary Chapter 7 2 bankruptcy filed on October 8, 2018, with the United States Bankruptcy Court, 3 Central District of California (Los Angeles), Case No. 2-18-bk-21796-RK; 4 • (P) Motion for Relief from the Automatic Stay (with exhibits) filed by 5 Wilmington on November 1, 2018, with the United States Bankruptcy Court, 6 Central District of California (Los Angeles), Case No. 2:18-bk-21796-RK;3 7 • (Q) Order Granting Motion for Relief from the Automatic Stay filed and 8 entered on November 29, 2018, with the United States Bankruptcy Court, 9 Central District of California (Los Angeles), Case No. 2:18-bk-21796-RK. 10 (RJN 1–4.) 11 Courts routinely take judicial notice of recorded deeds and similar instruments. 12 See Jara v. Aurora Loan Servs., 852 F. Supp. 2d 1204, 1205 n.2 (N.D. Cal. 2012) 13 (taking “judicial notice of the undisputable facts contained” in notice of default as a 14 public record). As such, Exhibits A, C–H, and M are subject to judicial notice. 15 Exhibits I–L, and N–Q are proceedings in other courts, which are also subject to 16 judicial notice. See U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 17 971 F.2d 244, 248 (9th Cir. 1992) (stating the court “may take notice of proceedings 18 in other courts, both within and without the federal judicial system, if those 19 proceedings have a direct relation to matters at issue”). 20 judicial notice of another court’s record, a court may do so only for the existence of 21 the document and not for the truth of the facts therein. Lee, 250 F.3d at 690; M/V Am. 22 Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983). However, when taking 23 Exhibit B, the Wells Fargo Merger Agreement, is referenced in Plaintiff’s 24 complaint and thus, is subject to judicial notice. (FAC ¶ 4.); United States ex rel. Lee 25 v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011) (quoting Marder v. Lopez, 450 26 F.3d 455, 448 (9th Cir. 2006)) (taking judicial notice of “unattached evidence on 27 28 3 The Court again notes a disparity between the RJN and the presented exhibit; the RJN indicates that Ex. P is a filing from the Northern District of California, when it is in fact a filing in the Central District. 8 1 which the complaint ‘necessarily relies’ if . . . no party questions the authenticity of 2 the document”). 3 Accordingly, the County Recorder documents and the Wells Fargo Merger 4 Agreement are properly subject to judicial notice. The Court records, however, are 5 only subject to judicial notice of their existence, not their truth. With this in mind, 6 Defendant’s request for judicial notice is GRANTED. 7 B. RES JUDICATA 8 Defendant contends that the doctrine of res judicata bars any claims that 9 Plaintiff may have against Defendant. (Mot. 5.) In opposition, Plaintiff did not 10 directly address whether res judicata bars his present claims. (See generally Opp’n to 11 Mot. (“Opp’n”), ECF No. 16.) 12 Res judicata precludes a subsequent action where the following elements are 13 met: “(1) an identity of claims, (2) a final judgment on the merits, and (3) privity 14 between parties.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 15 322 F.3d 1064, 1077 (9th Cir. 2003) (quoting Stratosphere Litig. L.L.C. v. Grand 16 Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002)). Although res judicata is an 17 affirmative defense, a court may nevertheless dismiss an action based on facts alleged 18 in the pleadings as well as any facts properly subject to judicial notice. See Scott v. 19 Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). 20 1. 21 26 As to the first element, identity of claims, courts consider the following: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. 27 Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (quoting United States 28 v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011)). 22 23 24 25 Identity of Claims 9 1 These criteria are not applied “mechanistically,” Garity v. APWU Nat’l Labor Org., 2 828 F.3d 848, 855 (9th Cir. 2016), and “[t]he fourth criterion is the most important,” 3 Harris, 682 F.3d at 1132. 4 nucleus of facts “depends on whether they are related to the same set of facts and 5 whether they could conveniently be tried together.” Mpoyo v. Litton Electro-Optical 6 Sys., 430 F.3d 985, 987 (9th Cir. 2005) (quoting W. Sys., Inc. v. Ulloa, 958 F.2d 864, 7 871 (9th Cir. 1992)). Thus, “[i]dentity of claims exists when two suits arise from ‘the 8 same transactional nucleus of facts.’” Stratosphere, 298 F.3d at 1142 n.3 (citing 9 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001)). Whether two suits arise from the same transactional 10 Plaintiff’s current and former suits both arise from the foreclosure of the 11 Property. After Plaintiff brought his First Action, the Property was sold at a trustee 12 sale. However, the sale of Plaintiff’s Property does not give rise to new facts, since 13 Defendant’s involvement in the matter and interest in Plaintiff’s loan ceased prior to 14 the First Action in 2016. Plaintiff’s present claims relate entirely to facts that existed 15 at the time of the First Action, such that the two suits could have been tried together. 16 Thus, the two suits arise out of the same transactional nucleus of facts and there is 17 identity of claims. 18 Accordingly, the first element is met. 19 2. Final Judgment on the Merits 20 Res judicata also requires a final judgment on the merits. See Mpoyo, 430 F.3d 21 at 988. “Moreover, a voluntary dismissal, with prejudice . . . is considered a final 22 judgment on the merits for the purposes of res judicata.” 23 Ventritex, Inc., 775 F. Supp. 1258, 1262 (N.D. Cal. 1991) (citing Eichman v. Fotomat 24 Corp., 759 F.2d 1434, 1438–39 (9th Cir. 1985)). Here, Plaintiff voluntarily dismissed 25 the First Action with prejudice on July 21, 2017. Accordingly, Plaintiff’s voluntary 26 dismissal constitutes a final judgment on the merits and the second element is met. 27 28 10 Intermedics, Inc. v. 1 3. 2 Privity exists when a party “is so identified in interest with a party to former 3 litigation that he represents precisely the same right in respect to the subject matter 4 involved.” Stratosphere Litig. L.L.C., 298 F.3d at 1142, n.3 (citation omitted). 5 “[P]rivity is a flexible concept dependent on the particular relationship between the 6 parties in each individual set of cases.” Tahoe-Sierra Pres. Council, 322 F.3d at 1081– 7 82 (quoting In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983)). Plaintiff and Defendant were both parties to the First Action in the same 8 9 Privity of the Parties capacity as in the instant matter. As such, the third element is met. 10 As all three elements are met, Plaintiff’s claims are therefore barred by the 11 doctrine of res judicata. Nevertheless, the Court will address Defendant’s remaining 12 arguments before turning to whether leave to amend is appropriate. 13 C. JUDICIAL ESTOPPEL 14 Defendant argues that Plaintiff’s claims are barred by judicial estoppel because 15 Plaintiff did not disclose any pending or future claims against Defendant in his chapter 16 seven bankruptcy filing. (Mot. 7–9.) Plaintiff did not address Defendant’s judicial 17 estoppel arguments in his Opposition. (See Opp’n.) 18 Judicial estoppel is an equitable doctrine invoked at the Court’s discretion that 19 “prevents a party from prevailing in one phase of a case on an argument and then 20 relying on a contradictory argument to prevail in another phase.” New Hampshire v. 21 Maine, 532 U.S. 742, 749 (2001). Judicial estoppel “protect[s] the integrity of the 22 judicial process by prohibiting parties from deliberately changing positions according 23 to the exigencies of the moment.” Id. at 749–50 (citation and internal quotation marks 24 omitted). The Supreme Court has identified the following elements for courts to 25 consider in determining whether judicial estoppel is applicable: (1) “a party’s later 26 position . . . [is] clearly inconsistent with its earlier position”; (2) the party succeeded 27 in persuading the first court to accept their earlier position; and (3) “the party seeking 28 to assert an inconsistent position would derive an unfair advantage.” Id. at 750–51. 11 1 In the bankruptcy context, judicial estoppel bars a cause of action when “a 2 plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy 3 schedules and obtains a discharge.” Ah Quin v. Cty. of Kauai Dep’t of Transp., 733 4 F.3d 267, 271 (9th Cir. 2013). “Judicial estoppel will be imposed when the debtor has 5 knowledge of enough facts to know that a potential cause of action exists during the 6 pendency of the bankruptcy, but fails to amend his schedules or disclosure statements 7 to identify the cause of action as a contingent asset.” Hamilton v. State Farm Fire & 8 Cas. Co., 270 F.3d 778, 784 (9th Cir. 2001). Moreover, “[i]t is the awareness of the 9 factual, not the legal, basis of a claim that triggers a bankruptcy petitioner’s duty to 10 list the claim as an asset.” Shokohi v. JP Morgan Chase Bank, No. C 11-4947 MMC, 11 2011 WL 5412933, at *2-3 (N.D. Cal. Nov. 8, 2011) 12 Although courts may also consider whether the estopped party’s omission was 13 inadvertent, a presumption of “deliberate manipulation” applies except in the narrow 14 circumstance where the plaintiff-debtor reopens bankruptcy proceedings and corrects 15 the initial error. Ah Quin, 733 F.3d at 273. 16 1. Clearly Inconsistent Position 17 A plaintiff-debtor asserts an inconsistent position when claims are omitted from 18 bankruptcy schedules, as the plaintiff-debtor thereby represents that no such claims 19 exist. Id. at 271. 20 Here, Plaintiff filed for bankruptcy three times, and in his most recent case, 21 which resulted in a discharge, Plaintiff failed to disclose any pending or potential 22 claims against Defendant. 23 knowledge of a potential claim against Defendant, since Plaintiff had already brought 24 and dismissed a lawsuit against Defendant. Given that Plaintiff neither disclosed his 25 present claims nor amended his bankruptcy schedules, his position is inconsistent and 26 cannot stand. 27 By this third bankruptcy, Plaintiff had sufficient Accordingly, the first element is met. 28 12 1 2. 2 “[A] bankruptcy court may ‘accept’ the debtor’s assertions by relying on the 3 debtor’s nondisclosure of potential claims.” Hamilton, 270 F.3d at 784 (finding that 4 “a discharge of debt by a bankruptcy court, under these circumstances, is sufficient 5 acceptance to provide a basis for judicial estoppel”). Here, the bankruptcy court accepted Plaintiff’s prior assertions and relied on his 6 7 Judicial Acceptance of Party’s Earlier Position nondisclosures when it discharged his debt. 8 Thus, the second element is met. 9 3. Unfair Advantage 10 A plaintiff-debtor obtains an unfair advantage when its debt is discharged 11 without disclosing a pending lawsuit. Ah Quin, 733 F.3d at 271. Plaintiff enjoyed the 12 benefit of three automatic stays and had his debt discharged without disclosing any 13 potential claims against Defendant. Thus, Plaintiff would derive an unfair advantage 14 and the third element is met. Accordingly, all three elements of judicial estoppel are satisfied. 15 16 Plaintiff’s claims are also barred by the doctrine of judicial estoppel. 17 D. Thus, LEAVE TO AMEND 18 In general, a court should liberally allow a party leave to amend its pleading. 19 See Fed. R. Civ. P. 15(a); see also Owens, 244 F.3d at 712 (internal quotation marks 20 omitted) (“[a] district court shall grant leave to amend freely when justice so requires; 21 “this policy is to be applied with extreme liberality.”) Further, “a pro se litigant is 22 entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to 23 dismissal of the action.” Garity, 828 F.3d at 854 (quoting Lucas v. Dep’t of Corr., 66 24 F.3d 245, 248 (9th Cir. 1995)). However, the Court may deny leave to amend where 25 amendment would be futile. Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009). 26 When “any amendment would be futile, there is no need to prolong the litigation by 27 permitting further amendment.” Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 28 1088 (9th Cir. 2002) (affirming the trial court’s denial of leave to amend where 13 1 plaintiffs could not cure a basic flaw—inability to demonstrate standing—in their 2 pleading). 3 Although pro se pleadings must be construed liberally, a plaintiff must present 4 factual allegations sufficient to state a plausible claim for relief. See Hebbe v. Pliler, 5 627 F.3d 338, 342 (9th Cir. 2010). A court “may not supply essential elements of the 6 claim that were not initially [pleaded].” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 7 1992). Moreover, a liberal reading cannot cure the absence of such facts. Ivey v. Bd. 8 of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 9 The court is sympathetic to Plaintiff’s pro se status, but his claims against 10 Defendant are ultimately futile. Given that Plaintiff’s claims against Defendant are 11 barred by both res judicata and judicial estoppel, further amendments would not cure 12 such fatal deficiencies. Thus, leave to amend is not appropriate. V. 13 14 15 CONCLUSION For the foregoing reasons, Defendant’s Motion is GRANTED with PREJUDICE. 16 17 IT IS SO ORDERED. 18 19 July 10, 2019 20 21 22 23 __________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 24 25 26 27 28 14
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