Sherri M. Kozy v. Countrywide Home Loans, Inc., No. 1:2009cv00621 - Document 23 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION RE: Defendant's 17 Motion to Dismiss or, in the alternative, Motion for a More Definite Statement signed by Judge Oliver W. Wanger on 11/9/2009. (Sant Agata, S)
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1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 SHERRI KOZY, 09-CV-00621-OWW-GSA Plaintiff, 5 v. 6 7 MEMORANDUM DECISION RE: DEFENDANT S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT COUNTRYWIDE HOME LOANS, INC.; and DOES 1 to 10, inclusive, 8 Defendants. 9 I. INTRODUCTION 10 Before 11 the court is a motion to dismiss or, in the 12 alternative, a motion for a more definite statement filed by 13 Defendant 14 Countrywide ). Defendant s motion is directed at the three claims 15 asserted by Plaintiff Sherri Kozy ( Plaintiff or Kozy ) in her 16 First Amended Complaint ( FAC ). 17 are taken from the FAC (Doc. 15) and other documents on file in 18 this case. Countywide Home Inc. ( Defendant or The following background facts II. BACKGROUND 19 20 Loans, A. General Allegations 21 1. Plaintiff And Her Two Loans 22 Plaintiff is a licensed general contractor 23 developer. 24 and a land her loan on her personal residence. (Doc. 15 at 2.) 25 On or about May 2005, Plaintiff decided to refinance The loan transaction was originated by American First Real 26 Estate Services ( American First ). The loan from American First 27 was supposed to be for $415,000. When Plaintiff received the 28 loan documents from American First, however, the loan was for only 1 1 $309,000. American First informed Plaintiff that a second loan 2 would issue for an additional $100,000. 3 Plaintiff that it would cover the costs for both loans, and 4 Plaintiff was provided with a good faith cost estimate which 5 reflected this. (Id. at 2-3.) American First went out of business. 6 American First assured Some time after May 7 2005, Countrywide began servicing both of these loans. 8 the first loan (for $309,000), upon making her first payment, 9 Plaintiff received a statement from Countrywide which showed that 10 over 11 Plaintiff did in fact believe she got a great loan as promised, so 12 she set her payments up on automatic payment. (Id. at 3.) 13 $700 was applied directly to principle. As to Accordingly, As to the second loan, [a]fter one year, Plaintiff received 14 the second loan from Countrywide for $115,000. 15 was sold to HSBC. (Id.) 17 Plaintiff Discovers Undisclosed Addendums To Both Loans And A Different Truth In Lending Statement For The First Loan 18 On or about July 2006, HSBC sent Plaintiff documents that 19 referred to the loan which HSBC had purchased (the second loan for 20 $115,000) as well as the $309,000 loan serviced by Countrywide. 21 These documents from HSBC included addendums to both loans that 22 Plaintiff had never seen or signed, including a prepayment penalty, 23 an adjustable rate note, and an adjustable rate rider. (Id.) 24 result of the addenda, Plaintiff returned the $115,000 second 25 mortgage. (Id. at 4.) 16 2. This second loan As a 26 On or about November 2007, HSBC advised Plaintiff in writing 27 that she had been a victim of fraud by CHL [Countrywide], and HSBC 28 notified the credit reporting agencies to remove any blemishes to 2 1 plaintiff s credit. Countrywide did nothing to solve Plaintiff s 2 loan problems, her principal balance on her first loan increased 3 approximately $1,000 per month, and Plaintiff took her payments off 4 automatic payment. (Id. at 4.) When Plaintiff investigated her first loan, Countrywide faxed 5 6 Plaintiff 7 originally received. The original truth in lending statement (from 8 American First) for the first loan reflected an interest rate of 9 3.94% and the total money to be paid, if she kept the loan for 30 was a different truth $544,000. The in lending truth in statement lending than statement she 10 years, 11 Countrywide faxed Plaintiff, however, had a higher interest rate 12 and a total pay back of over $670,000. 13 signed this truth in lending statement. (Id.) Plaintiff had never seen or In April 2007, Countrywide filed a notice of default. 14 that On or 15 about May 2007, an attorney for Countrywide spoke with Plaintiff 16 and 17 unenforceable due to numerous violations of State and Federal 18 laws. 19 record but has since demanded a $360,000 payoff from Plaintiff and 20 also 21 Countrywide keeps cancelling. (Id. at 4-5.) 22 B. 23 purportedly agreed that the loan was not right and Countrywide removed the notice of default from public threatened Plaintiff with trustee sale notices, which Plaintiff s Claims Plaintiff filed a complaint and commenced this lawsuit against 24 Defendant in Kern County Superior Court. (Doc. 2-2, Ex. A.) 25 state-court complaint contained two claims against Defendant: one 26 claim for fraud under California law and one claim for a violation 27 of the Truth in Lending Act ( TILA ), 15 U.S.C. § 1601 et seq. 28 (Id.) Defendant removed the state 3 action to federal The court, 1 asserting federal question jurisdiction over the TILA claim and 2 supplemental jurisdiction over the state law fraud claim. (Doc. 2- 3 1.) 4 which contains three claims. 5 TILA claims and added one claim under California Business and 6 Professions Code § 17200 et seq. 7 that federal question jurisdiction exists over the TILA claim. 8 (Doc. 15 at 2.) 9 After removal, Plaintiff filed an amended complaint (the FAC) 1. Plaintiff reasserted her fraud and In the FAC, Plaintiff asserts Diversity jurisdiction is not pleaded. Fraud Claim 10 The fraud claim is based on alleged concealment and forgery by 11 Defendant which Plaintiff purportedly discovered in July 2006. 12 Plaintiff alleges: 13 14 22. . . . Plaintiff discovered in July of 2006, Defendants, and each of them, concealed or suppressed material facts from Plaintiff that include, but are not limited to: 15 16 17 18 19 20 21 22 23 24 25 A. CHL [Countrywide] had forged and added false loan addendums relating to prepayment penalties, an adjustable rate note and an adjustable rate rider; and, B. The note plaintiff signed referenced an adjustable 1% initial interest rate, with a 2.94% cap, which was conducive to the truth in lending statement left with her at signing, stating the interest rate was 3.94% and the total money paid, if she kept that loan for 30 years would be principal and interest $544K. When plaintiff was investigating this loan, Plaintiff learned that CHL added a different truth in lending statement to her file that plaintiff never saw or signed, which plaintiff alleges was forged by CHL. Said truth in lending statement showed a higher interest rate and a total pay back of over $670,000.00. 23. Defendant CHL concealed or suppressed said material facts that they were bound to disclose. 26 27 28 24. Defendant CHL concealed or suppressed these facts with the intent to defraud and induce plaintiff to act as alleged herein. At the time plaintiff acted, plaintiff was unaware of the concealed or suppressed facts alleged 4 1 2 3 4 5 6 herein and would not have taken the action if plaintiff had known the facts by continuing to perform under the terms of the loan contracts and would have taken steps to protect herself from the fraudulent and unlawful conduct of Defendant[] CHL as alleged herein. 25. In justifiable reliance upon Defendant CHL[ s] conduct, Plaintiff continued to perform under said loan contracts and refrain from taking steps to protect herself from the fraudulent and unlawful conduct of Defendant[] CHL as alleged herein. 7 (Id. at 5-6.) Plaintiff asserts that, as a result of this fraud, 8 Plaintiff 9 damages. (Id. at 6.) suffered past and future consequential and special 10 2. 11 Plaintiff s TILA claim against Countrywide is based on the 12 alleged addenda to her loans and the different truth in lending 13 statement. 14 15 16 TILA Claim Plaintiff asserts: 32. Here, as set forth in addendum one, Plaintiff discovered in July, 2006, defendant CHL [Countrywide] unlawfully and fraudulently added and forged plaintiff s signature to the following documents labelled as Addendums : prepayment penalty, adjustable rate note and adjustable rate rider. 17 18 19 3[3]. As a result of these forged and fraudulent documents being added to plaintiff s loan, her principle balance increased by over $1,000.00 per month, which which [sic] is in conflict with the note and truth in lending statement that was left for her to sign.[1] 20 21 22 23 24 3[4]. The note plaintiff signed referenced an adjustable 1% initial interest rate, with a 2.94% cap, which was conducive to the truth in lending statement left with her at signing, stating the interest rate was 3.94% and the total money paid, if she kept that loan for 30 years would be principal and interest $544,000.00. When plaintiff was investigating this loan, Plaintiff learned that CHL added a different truth in lending statement to her file that plaintiff never saw or signed, which 25 26 27 28 1 This paragraph is misnumbered in the FAC as paragraph "30." The subsequent paragraphs in the FAC are also misnumbered. In this Memorandum Decision, the misnumbering is corrected by using brackets and inserting the appropriate number. 5 plaintiff alleges was forged by CHL. Said truth in lending statement showed a higher interest rate and a total pay back of over $670,000.00. 1 2 3 (Id. at 7-8.) Plaintiff asserts that, as a result of Defendant s 4 unlawful conduct, Plaintiff has suffered consequential and special 5 damages, and severe damage to her credit rating. (Id.) Plaintiff 6 does not request rescission as a remedy. 7 3. 8 Plaintiff s § 17200 claim is based on the alleged fraud 9 Section 17200 Claim committed by Defendant. Plaintiff asserts: [40]. As set forth in paragraphs 22 A & B [of the state law fraud claim], the following acts alleged therein constitute unfair business practices by defendants against plaintiff in violation of California Business & Professions Code § 17200, et seq.[] 10 11 12 [41]. Any person acting for him or herself has standing to file suit under Business & Professions Code section 17200. Any person whether or not injured by the practice, may sue under the statute for injunctive relief, equitable relief, or remedial practices, restitution, and punitive damages. 13 14 15 16 [42]. The conduct of Defendants [Countrywide] and DOES 1 through 10, inclusive, and each of them constitute fraudulent, deceptive, unfair, and other wrongful conduct as herein alleged, and said defendants have violated California Business and Professions Code §17200, et seq., by consummating an unlawful, unfair, and fraudulent business practices, designed to deprive plaintiff of her residence and collect unfair and improper loan principle and interest payments from her relating to the subject loans. 17 18 19 20 21 22 (Id. at 9.) Plaintiff asserts that, as a result of the unfair 23 business practices, Countrywide was unjustly enriched. (Id.) 24 C. Summary Of Countrywide s Motion Defendant s motion attacks all three claims in Plaintiff s 25 26 FAC. As to Plaintiff s TILA claim for damages, Defendant argues 27 that it is barred by the statute of limitations. 28 Defendant argues that it is an assignee of the loans and, as such, 6 Alternatively, 1 Defendant cannot be liable for TILA violations unless they are 2 apparent on the face of the assigned loan documents. See 15 U.S.C. 3 § 1641(e). 4 apparent on the face of the assigned loan documents. According to Defendant, there are no TILA violations As to the fraud claim, Defendant argues it is barred by the 5 6 statute 7 specificity under Rule 9, and it is unclear from the pleadings 8 what fraud Countrywide allegedly committed. (Doc. 21 at 2.) 9 to the § 17200 claim, Defendant argues that it is time-barred and 10 of limitations, is not pleaded with the requisite As also insufficiently pleaded. Defendant requests dismissal of all three claims, the entire 11 12 FAC, with prejudice. Alternatively, with respect to all three 13 claims, Defendant requests a more definite statement under Rule 14 12(e). 15 Plaintiff filed an opposition to Defendant s motion in which 16 Plaintiff objects to the dismissal of her two state law claims, 17 i.e., 18 opposition does not address the federal TILA claim. 19 to the state law claims, Plaintiff argues they are timely and 20 sufficiently pleaded. 21 amend the FAC to correct any pleading deficiencies with respect to 22 the state law claims. the fraud 25 A. and the § 17200 claim. Plaintiff s With respect Alternatively, Plaintiff requests leave to III. 23 24 claim STANDARD OF DECISION Rule 12(b)(6) Dismissal under Rule 12(b)(6) is appropriate where the 26 complaint lacks a cognizable legal theory or sufficient facts to 27 support a cognizable legal theory. Balistreri v. Pacifica Police 28 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 7 A complaint is also 1 "subject to dismissal for failure to state a claim if the 2 allegations" on their face "show that relief is barred" for some 3 legal reason. Jones v. Bock, 549 U.S. 199, 215 (2007); see also 4 Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001). 5 To sufficiently state a claim to relief and survive a 12(b)(6) 6 motion, a complaint "does not need detailed factual allegations" 7 but the "[f]actual allegations must be enough to raise a right to 8 relief above the speculative level." Bell Atl. Corp. v. Twombly, 9 550 U.S. 544, 555 (2007). Mere "labels and conclusions" or a 10 "formulaic recitation of the elements of a cause of action will not 11 do." Id. 12 relief that is plausible on its face." Id. at 570. 13 "[t]o 14 sufficient factual matter, accepted as true, to state a claim to 15 relief that is plausible on its face." Ashcroft v. Iqbal, __ U.S. 16 __, 17 omitted). 18 requirement, but it asks for more than a sheer possibility that a 19 defendant has acted unlawfully. 20 that are merely consistent with a defendant's liability, it stops 21 short 22 entitlement to relief." Id. (internal citation and quotation marks 23 omitted). Rather, there must be "enough facts to state a claim to survive 129 S. a Ct. motion 1937, to dismiss, 1949 (2009) a In other words, complaint (internal must contain quotation marks "The plausibility standard is not akin to a probability of the line between Where a complaint pleads facts possibility and plausibility of 24 In deciding whether to grant a motion to dismiss, the court 25 must accept as true all "well-pleaded factual allegations." Iqbal, 26 129 S. Ct. at 1950. 27 to 28 unwarranted accept as true A court is not, however, required to "required allegations deductions of fact, 8 that or are merely unreasonable conclusory, inferences." 1 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 3 (9th Cir. 2009). 4 allegations that contradict matters properly subject to judicial 5 notice or by exhibit. Sprewell, 266 F.3d at 988. Nor is a court required to accept as true 6 The Ninth Circuit has summarized the governing standard, in 7 light of Twombly and Iqbal, as follows: "In sum, for a complaint to 8 survive a motion to dismiss, the non-conclusory factual content, 9 and reasonable inferences from that content, must be plausibly 10 suggestive of a claim entitling the plaintiff to relief." Moss v. 11 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal 12 quotation marks omitted). 13 B. Rule 9(b) Under Rule 9(b), a fraud claim must state with particularity 14 15 the circumstances constituting fraud. To comply with Rule 9, the 16 complaint the 17 misconduct: must give the defendant particulars of the 22 Rule 9(b) demands that the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong. Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged. A party alleging fraud must set forth more than the neutral facts necessary to identify the transaction. 23 Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) 24 (internal citations and quotation marks omitted). 25 C. 18 19 20 21 Rule 12(e) 26 Under Rule 12(e), [a] party may move for a more definite 27 statement of a pleading when it is so vague or ambiguous that the 28 party cannot reasonably prepare a response. 9 A Rule 12(e) motion 1 is proper only if the complaint is so indefinite that the defendant 2 cannot ascertain the nature of the claim being asserted, i.e., so 3 vague that the defendant cannot begin to frame a response. See 4 Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 5 (E.D. Cal. 1981). 6 specific enough to notify defendant of the substance of the claim 7 being asserted. 8 (C.D. Cal. 1996); see also San Bernardino Pub. Employees Ass'n v. 9 Stout, 946 F. Supp. 790, 804 (C.D. Cal. 1996) ( A motion for a more 10 definite statement is used to attack unintelligibility, not mere 11 lack of detail, and a complaint is sufficient if it is specific 12 enough to apprise the defendant of the substance of the claim 13 asserted against him or her. ). See Bureerong v. Uvawas, 922 F. Supp. 1450, 1461 IV. 14 15 The motion must be denied if the complaint is A. DISCUSSION AND ANALYSIS TILA Claim 16 TILA "requires creditors to provide borrowers with clear and 17 accurate disclosures of terms dealing with things like finance 18 charges, annual percentage rates of interest, and the borrower's 19 rights." Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998). 20 Failure 21 "statutory and actual damages [that are] traceable to a lender's 22 failure to make the requisite disclosures." Id. to satisfy TILA s requirements exposes a lender to 23 Plaintiff asserts a TILA claim for damages, not rescission. 24 A TILA claim for damages must be brought within one year from the 25 date of the occurrence of the violation. 15 U.S.C. § 1640(e); see 26 also Beach, 523 U.S. at 412. 27 784 F.2d 910, 915 (9th Cir. 1986), for statute of limitations 28 purposes, the occurrence of the violation takes place on the As explained in King v. California, 10 1 "consummation of the transaction, but the limitations period may 2 be extended through equitable tolling: 9 [T]he limitations period in Section 1640(e) runs from the date of consummation of the transaction but . . . the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action. Therefore, as a general rule the limitations period starts at the consummation of the transaction. The district courts, however, can evaluate specific claims of fraudulent concealment and equitable tolling to determine if the general rule would be unjust or frustrate the purpose of the Act and adjust the limitations period accordingly. 10 Defendant argues that the transaction at issue here was consummated 11 in May 2005. 12 request for judicial notice of, among other documents, the recorded 13 Deed of Trust associated with the $309,000 loan. (See Doc. 18, Ex. 14 A.)2 15 executed on May 5, 2005. 16 Plaintiff s state-court complaint, which alleged a TILA claim for 17 damages against Countrywide, was filed in December 2008, well after 18 the one-year statutory period. 19 considered the start of the limitations period, Plaintiff s TILA 20 claim for damages is time-barred.3 3 4 5 6 7 8 In support of this argument, Defendant filed a The Deed of Trust reflects that the $309,000 loan was Plaintiff does not dispute this fact. Accordingly, if May 5, 2005, is 21 22 23 24 25 26 27 28 2 Under Federal Rule of Evidence 201, a court may take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal quotation marks omitted). As a publically recorded document, judicial notice of the May 2005 Deed of Trust can be taken. See Champlaie v. BAC Home Loans Servicing, LP, Civ. No. S-09-1316 LKK/DAD, 2009 WL 3429622, at *4 (E.D. Oct. 22, 2009) (taking judicial notice, in a TILA case, of a recorded deed of trust). 3 Defendant s argument assumes that Plaintiff s TILA claim is only with respect to the first loan and not the second loan for 11 1 It need not be decided, however, whether May 5, 2005, is, in 2 fact, the commencement date for running of the limitations period. 3 Under the best case scenario for Plaintiff, her TILA claim for 4 damages is time-barred. 5 The face of Plaintiff s complaint reveals that Countrywide 6 began servicing both loans after May 2005 and Plaintiff received 7 documentation about both loans in July 2006. (Doc. 15 at 3.) 8 Plaintiff actually discovered the alleged TILA violations that 9 Countrywide committed, and the associated fraud, in July 2006. 10 (Id. at 7; see also id. at 5.) 11 equitable tolling applies and the statute of limitations did not 12 begin 13 violations in July 2006, this gave Plaintiff until July 2007 (one 14 year later) to file a TILA claim for damages against Countrywide. 15 Plaintiff did not file a TILA claim for damages against Countrywide 16 until December 2008.4 17 damages is time-barred as to both loans. 18 to run until Accordingly, even assuming that Plaintiff actually discovered the TILA Accordingly, Plaintiff s TILA claim for Plaintiff has not submitted any opposition to Defendant s 19 20 21 22 23 24 25 26 27 28 $115,000. Plaintiff has not challenged this assumption, Plaintiff s opposition ignores her TILA claim altogether. 4 as In footnote one of its motion to dismiss, Countrywide requests judicial notice of the December 2008 filing date of the state-court complaint. Plaintiff s state-court complaint is a matter of public record and, because it was submitted in connection with Countrywide s removal, it is on file in this case. (See Doc. 2-2, Ex. A.). Judicial notice of the December 2008 filing date, as appears on the state-court complaint, and as reflected on the electronic state-court docket (available at www.kern.courts.ca.gov/home.aspx), is taken. See Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (taking judicial notice of the docket in another case and a filing date of a motion as reflected on that docket). 12 1 motion with respect to her TILA claim. 2 dismiss 3 GRANTED. the TILA claim on statute of Defendant s motion to limitations grounds is 4 Alternatively, Countrywide requests dismissal of the TILA 5 claim on the grounds that Countrywide cannot be liable for TILA 6 violations unless they were apparent on the face of the loan 7 documents. 8 originated the two loans and, after May 2005, Countrywide began 9 servicing the loans. (Doc. 15 at 3.) Plaintiff s FAC acknowledges that American First Under TILA, [a] servicer 10 of a consumer obligation arising from a consumer credit transaction 11 shall not be treated as an assignee of such obligation . . . unless 12 the servicer is or was the owner of the obligation. 13 1641(f)(1). 15 U.S.C. § 14 If a loan servicer is an assignee of the loan it then 15 becomes subject to all claims and defenses with respect to that 16 mortgage that the consumer could assert against the creditor of the 17 mortgage. 15 U.S.C. § 1641(d)(1). 18 assignee of a loan secured by real property is, however, limited by 19 a statutory prerequisite which states that a TILA claim may be 20 brought against the assignee only if the violation for which such 21 action or proceeding is brought is apparent on the face of the 22 disclosure statement. § 1641(e)(1)(A). As stated in § 1641(e)(2): 23 [A] violation is apparent on the face of the disclosure 24 statement if-- A TILA claim against an 27 (A) the disclosure can be determined to be incomplete or inaccurate by a comparison among the disclosure statement, any itemization of the amount financed, the note, or any other disclosure of disbursement; or 28 (B) the disclosure statement does not use the terms 25 26 13 or format required to be used by this subchapter. 1 2 In other words, a TILA claim may be asserted against the assignee 3 of the loan for violations that a reasonable person can spot on 4 the face of the disclosure statement or other assigned documents. 5 White v. Homefield Fin., Inc., 545 F. Supp. 2d 1159, 1168 (W.D. 6 Wash. 2008) (quoting Taylor v. Quality Hyundai, Inc., 150 F.3d 689, 7 694 (7th Cir. 1998)); see also Kane v. Equity One, Inc., No. Civ.A. 8 03-3931, 2003 WL 22939377, at *4 (E.D. Pa. Nov. 21, 2003). Defendant argues that, given its status as an assignee, 9 10 Plaintiff s TILA claim fails. 11 has not and cannot allege that a TILA violation was apparent on the 12 face of the assigned loan documents. 13 violation is not based on the face of the assigned documents, but 14 rather is based on a comparison between the face of those documents 15 and the addendums and the additional truth in lending statement 16 which Countrywide added to the loans. 17 however, whether Plaintiff has sufficiently alleged, or could 18 allege, assignee liability as to Countrywide because Plaintiff s 19 TILA 20 limitations. claim against According to Defendant, Plaintiff Countrywide is Plaintiff s alleged TILA It need not be decided, barred by the statute of 21 Defendant's motion to dismiss the TILA claim on statute of 22 limitations grounds is GRANTED, and this claim is DISMISSED WITH 23 PREJUDICE. 24 B. 25 State Law Claims The two remaining claims in the FAC are supplemental state law 26 claims for fraud and a violation of California Business & 27 Professions Code § 17200. 28 to, the state law fraud claim, as Plaintiff is alleging that the The § 17200 claim is based on, and tied 14 1 unfair business practice at issue concerns the common law fraud 2 which Countrywide committed. 3 Under 28 U.S.C. § 1367(c)(3), a district court may decline to 4 exercise supplemental jurisdiction over state law claims if the 5 district court has dismissed all claims over which it has original 6 jurisdiction. When federal claims are dismissed before trial ... 7 pendant state claims also should be dismissed. Religious Tech. 8 Ctr. v. Wollersheim, 971 F.2d 364, 367-68 (9th Cir. 1992) (internal 9 quotation marks omitted); see also Brown v. Lucky Stores, Inc., 246 10 F.3d 1182, 1189 (9th Cir. 2001) (recognizing the propriety of 11 dismissing supplemental state law claims without prejudice when the 12 district court has dismissed the federal claims over which it had 13 original jurisdiction); Cook, Perkiss & Liehe, Inc. v. N. Cal. 14 Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) ( [T]he 15 proper exercise of discretion is to dismiss the pendent state law 16 claims as well. ). 17 Here, dismissal is warranted and ordered as to the time-barred 18 TILA claim - the only federal claim - in Plaintiff s FAC. 19 federal claim is dismissed, the court has no interest in the 20 supplemental state law claims. 21 spent on analyzing the merits of such claims, and the claims raise 22 issues of state law which California state courts can readily 23 address. 24 cases. 25 to state residents whose rights are allegedly violated. 26 27 28 Once the No judicial resources have been The docket of this court includes over 1,100 pending The state court has a genuine interest in affording a forum Supplemental jurisdiction over the declined. V. CONCLUSION 15 state law claims is 1 For the reasons stated: 2 1. 3 The TILA claim, the only federal claim, of which Plaintiff has not opposed dismissal, is DISMISSED WITH PREJUDICE. 2. 4 Supplemental jurisdiction over the state law claims is 5 declined. Defendant s motion to dismiss the state law claims is 6 DENIED as moot. 7 state-court complaint, this part of the case is remanded to the 8 Kern County Superior Court for further proceedings. 9 claim was not alleged in the original state-court complaint and was Because the fraud claim was alleged in the removed The § 17200 10 first asserted in the FAC in federal court. 11 dismissed without prejudice to re-filing in state court. 3. 12 13 This claim is Defendant s motion for a more definite statement is DENIED as moot. 4. 14 Defendant s request for judicial notice of the May 2005 15 Deed of Trust is GRANTED. (Doc 18, Ex. A.) 16 for judicial notice of the Notice of Default (Doc. 18, Ex. B) and 17 the Notice of Trustee s Sale (Doc 18, Ex. C.) are DENIED as MOOT. 18 Defendant shall submit a form of order consistent with this 19 Memorandum Decision within five (5) days following electronic 20 service of this decision. 21 IT IS SO ORDERED. 22 Dated: 9i274f November 9, 2009 Defendant s requests /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 16
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