Aguero v. MortgageIT, Inc., et al., No. 1:2009cv00640 - Document 18 (E.D. Cal. 2009)
Court Description: ORDER GRANTING 8 Motion to Dismiss IN ITS ENTIRETY WITHOUT PREJUDICE, except as to claims that have beenDISMISSED WITH PREJUDICE; Plaintiff has not requested leave to amend, signed by Judge Oliver W. Wanger on 08/10/2009. CASE CLOSED (Martin, S)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 WALTER AGUERO, Plaintiff, 8 9 10 1:09-CV-0640 OWW SMS v. MEMORANDUM DECISION RE MORTGAGEIT, INC.’S MOTION TO DISMISS (DOC. 8). MORTGAGEIT, INC., et al., 11 Defendants. 12 13 I. INTRODUCTION 14 15 Before the court for decision is Defendant MortgageIT, 16 Inc.’s motion to dismiss Plaintiff Walter Aguero’s complaint 17 18 pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 8. 19 On February 12, 2009, Plaintiff filed a complaint in the Superior 20 Court of the State of California, County of Kern, alleging seven 21 causes of action. 1 22 the action to federal court pursuant to 28 U.S.C. §§ 1331, 1441 23 Doc. 2. based on a federal question. On April, 9, 2009, Defendant removed Id. 24 Plaintiff failed to file any opposition or statement of non25 26 27 1 (1) For declaratory relief; (2) to set aside the notice of trustee’s sale and notice of default; (3) for cancellation of instruments; (4) to quiet title to real property; (5) for an accounting; (6) for injunctive relief; and (7) for damages. 28 1 1 opposition in response to the motion to dismiss. 2 a reply indicating Plaintiff’s failure to respond and requesting 3 Defendant filed that Plaintiff’s complaint be dismissed in its entirety. Doc. 4 15. 5 6 7 II. LEGAL STANDARD A. Rule 12(b)(6) Motion to Dismiss 8 A motion to dismiss brought under Federal Rule of Civil 9 Procedure 12(b)(6) “tests the legal sufficiency of a claim.” 10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive 11 a motion to dismiss, a complaint must “contain sufficient factual 12 matter, accepted as true, to ‘state a claim to relief that is 13 14 plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 15 1949 (May 18, 2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 16 544, 570 (2007)). 17 18 19 20 21 22 23 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 defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citing Twombly, 550 U.S. 556-57). Dismissal also can be 24 based on the lack of a cognizable legal theory. Balistreri v. 25 26 27 28 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In deciding whether to grant a motion to dismiss, the court “accept [s] all factual allegations of the complaint as true and 2 1 draw[s] all reasonable inferences” in the light most favorable to 2 the nonmoving party. 3 (9th Cir. 2002). Rodriguez v. Panayiotou, 314 F.3d 979, 983 A court is not, however, “required to accept as 4 true allegations that are merely conclusory, unwarranted 5 deductions of fact, or unreasonable inferences.” Manufactured 6 7 Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1035 (9th 8 Cir. 2005) (quoting Sprewell v. Golden State Warriors, 266 F.3d 9 979, 988 (9th Cir. 2001)). 10 11 III. BACKGROUND 12 13 On February 13, 2006, Plaintiff financed the purchase of a 14 residential property located at 4506 Idlerock Avenue, 15 Bakersfield, California (“Subject Property”) through a deed of 16 trust and promissory note with Defendant lender in the amount of 17 $343,200.00 (“Subject Loan”). 18 Doc. 2 at 3-5. defaulted on the Subject Loan. Id. at 7. Plaintiff later On September 5, 2008, 19 a notice of default and election to sell under deed of trust, 20 21 Instrument No. 0208141855, was recorded in the Office of the Id. 22 County Recorder of Kern County. 23 notice of trustee’s sale, Instrument No. 0208191009, was also 24 recorded. 25 26 On December 10, 2008, a Id. Plaintiff alleges that Defendant engaged in wrongful conduct related to its loan practices, including failing to explain the 27 consequences of obtaining a loan and failing to provide copies of 28 3 Id. at 16-18. 1 all of the necessary documents. 2 alleges that defendants NDEX West LLC, North American Title 3 Company, Inc., and Alliance Title Company, Inc. 2 improperly Plaintiff also 4 initiated non-judicial foreclosure proceedings on the Subject 5 Property. Id. at 20. 6 7 8 IV. ANALYSIS A. Statutory Violations. 9 Defendant moves to dismiss the first cause of action for 10 11 declaratory relief on the grounds that: (1) the Subject Loan is 12 not governed by California Civil Code § 1632 or § 4970; (2) and 13 Plaintiff’s Truth in Lending Act (“TILA”), Federal Reserve 14 Regulation Z (“Reg Z”), Home Ownership and Equity Protection Act 15 (“HOEPA”), and Federal Trade Commission Act (“FTCA”) claims are 16 both factually deficient and time-barred. 17 18 1. California Civil Code § 1632. 19 Plaintiff alleges that because of a language barrier and 20 21 Defendant’s failure to provide a copy of “the contract or 22 agreement in Spanish,” which was “the language in which the 23 contract or agreement was negotiated,” the “Promissory Note and 24 Deed of Trust is [] voidable and subject to statutory rescission 25 and damages” pursuant to California Civil code § 1632.” Doc. 2 26 at 17. 27 28 2 Only defendant MortgageIT is a party to this motion. 4 See Doc. 8 at 1. 1 2 3 The Subject Loan is not governed by California Civil Code § 1632, which applies to “loan[s] or extension[s] of credit secured other than by real property,” because the Subject Loan is a 4 mortgage loan secured by an interest in real property. Cal. Civ. 5 Code § 1632(b)(2)(emphasis added); Doc. 2. at 3. Although the 6 7 statute does cover some forms of home loans, including loans 8 subject to the Industrial Loan Law, loans subject to the 9 California Finance Lenders Law, reverse mortgages, and loans 10 negotiated by real estate brokers, Plaintiff does not allege 11 facts that suggest the application of any of these exceptions. 12 See Cal. Civ. Code § 1632(b)(2)-(c). 13 Defendant’s motion to dismiss the California Civil Code 14 15 § 1632 claim is GRANTED. 16 17 18 2. California’s Predatory Lending Law. Plaintiff alleges that Defendant failed to disclose “a yield 19 spread premium (YSP) provisions, the cost of which was to be paid 20 21 by Plaintiff as added points and fees in connection with their 22 residual mortgage loan…in violation of California’s Predatory 23 Lending Law, as set forth in [California] Financial Code, § 24 4970.” 25 26 Doc. 2 at 6. California’s predatory lending laws prohibit specific acts in connection with “covered loans.” 27 “Covered loan” is: 28 5 Cal. Fin. Code § 4973. A 1 A consumer loan in which the original principal balance of the loan does not exceed the most current conforming loan limit for a single-family first mortgage loan established by the Federal National Mortgage Association in the case of a mortgage or deed of trust, and where one of the following conditions are met: 2 3 4 (1) For a mortgage or deed of trust, the annual percentage rate at consummation of the transaction will exceed by more than eight percentage points the yield on Treasury securities having comparable periods of maturity on the 15th day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor. 5 6 7 8 9 (2) The total points and fees payable by the consumer at or before closing for a mortgage or deed of trust will exceed 6 percent of the total loan amount. 10 11 Cal. Fin. Code § 4970(b). 12 The most current conforming loan 13 limit for a single family mortgage loan established by the 14 Federal National Mortgage Association is $417,000.00 3 __Plaintiff 15 alleges that the principal of his loan is $343,200.00, but does 16 not allege either that the annual percentage rate at consummation 17 of the transaction exceeded the Treasury securities rate by more 18 than eight percentage points or that the total points and fees 19 20 21 paid by the consumer at or before closing exceeded six percent of the total loan amount. Defendant’s motion to dismiss the California Civil Code § 22 23 4970 claim is GRANTED. 24 3 25 26 27 28 See Doc. 2 at 17. 4 See Fannie Mae, About Fannie Mae: Loan Limits, available at: http://www.fanniemae.com/aboutfm/loanlimits.jhtml (last visited August 7, 2009.) 4 Defendant cites, De Los Santos v. World Capital Financial, 2009 U.S. Dist. LEXIS 22913, at *9 (C.D. Cal. Mar. 9, 2009) for the proposition that the conforming loan limit is $250,000. Based on this, erroneous figure, Defendant argues that because Plaintiff alleges that the principal of his loan is $343,200.00, § 4970(b) does not apply. It is not clear where the De Los Santos court obtained the $250,000 figure, as no source is cited. 6 1 3. Plaintiff’s TILA, Regulation Z, HOEPA, and Federal Trade Commission Act Claims. 2 Plaintiff alleges that Defendant “engaged in deceptive loan 3 4 practices ... in knowing violation of [HOEPA, TILA, Reg Z, and 5 the FTCA].” 6 explain how Defendant violated HOEPA, TILA, Reg Z, or the FTCA; 7 Plaintiff merely alleges that “[t]he full details of these 8 violations are presently unknown to Plaintiff, however, when 9 Doc. 2 at 6. However, the complaint does not these facts are ascertained through discovery and investigation, 10 this complaint will be amended with leave of court to allege 11 those facts.” Id. This is insufficient. See, e.g., Martinez v. 12 13 Quality Loan Serv. Corp., 2009 U.S. Dist. LEXIS 21920, at * 13-14 14 (C.D. Cal. Feb. 10, 2009) (finding that allegations of 15 “unspecified acts violating unspecified provisions of the federal 16 law,” including assertions that “the specifics of [violations] 17 are unknown, but which are subject to discovery and with respect 18 to which the specifics will be alleged by amendment to this 19 complaint when ascertained,” were insufficient to state claims 20 21 for TILA, HOEPA, and FTCA violations); Barsekian v. First Am. 22 Loanstar Trustee Servs., 2009 U.S. Dist. LEXIS 2884, at *3-4 23 (C.D. Cal. Jan. 6, 2009) (dismissing plaintiff’s claim for 24 “predatory lending practices” because she “failed to provide a 25 single allegation of practices by [defendant] that could be 26 deemed predatory”). 27 Plaintiff’s damages claims under HOEPA and TILA are also 28 7 1 time-barred, as damages under either statute are subject to a 2 one-year statute of limitation. 3 15 U.S.C. § 1640(e); see Fonua v. First Allied Funding, 2009 U.S. Dist. LEXIS 30195, at *11 4 (N.D. Cal. Mar. 27, 2009) (acknowledging that “[c]laims under 5 HOEPA are governed by TILA’s one year statute of limitations” and 6 7 thus dismissing plaintiff’s HOEPA claim under this one-year Plaintiff alleges that he entered into the 8 limitation period). 9 Subject Loan with Defendant on February 13, 2006, but his 10 complaint was not filed until three years later, on February 13, 11 2009. 12 Doc. 2 at 13, 16. Because “the limitations period starts at the consummation of the transaction,” Plaintiff’s damages 13 claims under HOEPA and TILA were brought after the one-year 14 15 16 statute of limitations. Rosales v. Downey S&L Ass’n, F.A., 2009 U.S. Dist. LEXIS 15923, at *18 (S.D. Cal. Mar. 2, 2009) (quoting 17 King v. California, 784 F.2d 910, 915 (9th Cir. 1986)). 18 Plaintiff does not allege that he is entitled to equitable 19 tolling, Plaintiff’s damages claims under HOEPA and TILA are 20 time-barred. 21 In addition to damages, rescission may be available under 22 HOEPA and TILA in some circumstances. 15 U.S.C. § 1635; 12 23 24 C.F.R. § 226.23. To the extent rescission may apply here, any 25 such claim is also time-barred. The consumer’s right to 26 rescission is absolute only for a period of three days after the 27 loan is consummated, 15 U.S.C. § 1635(a); 12 C.F.R. § 28 8 1 226.23(a)(3), unless the lender fails to provide “material 2 disclosures” at the closing, in which case the period is extended 3 to three years, 15 U.S.C. § 1635(f); 12 C.F.R. § 226.23(a)(3) 4 There are no allegations in the complaint that the lender failed 5 to make “material disclosures.” Therefore, the three-day 6 7 limitations period applies. As Plaintiff did not initiate this 8 lawsuit within that time period, any rescission action is time 9 barred. 10 11 12 Reg Z, 12 C.F.R. § 226.4(c)(2), interprets TILA by defining terms such as “finance charge.” Claims brought under Reg Z are subject to TILA’s statute of limitations. See, e.g., Diessner v. 13 Mortgage Elec. Registration Sys., 618 F. Supp. 2d 1184, 11990-91 14 15 16 17 (2009). Therefore, Plaintiff’s Reg Z claims are also time- barred. Finally, Plaintiffs’ FTCA claim fails because there is no 18 private right of action under that statute. 19 against unfair trade practices afforded by the [FTCA] vests 20 “[P]rotection initial remedial power solely in the Federal Trade Commission.” 21 Carlson v. Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973). 22 Defendant’s motion to dismiss the TILA, HOEPA, Reg Z, and 23 24 25 26 FTCA claims is GRANTED. 4. Declaratory Relief Claim. Actions for declaratory relief are only permitted where 27 there is an “actual controversy relating to the legal rights and 28 9 1 duties of the respective parties.” 2 “The fundamental basis of declaratory relief is the existence of 3 Cal. Civ. Proc. Code § 1060. an actual, present controversy over a proper subject.” City of 4 Cotati v. Cashman, 29 Cal. 4th 69, 79 (9th Cir. 2002) (citations 5 omitted) (emphasis in the original). Given the court’s ruling on 6 7 8 the motion, specifically the finding that Defendant has no liability to Plaintiff, declaratory relief is improper. Defendant’s motion to dismiss the entire first cause of 9 10 action for declaratory relief is GRANTED. 11 12 13 14 B. Second Cause Of Action To Set Aside The Notice of Trustee’s Sale And Notice of Default. Defendant moves to dismiss the second cause of action (to 15 set aside the notice of trustee’s sale and notice of default) on 16 17 18 19 the grounds that: (1) it lacks foundation; and (2) it misstates the law in regards to proper procedure for a non-judicial foreclosure. 20 Plaintiff alleges that Defendant failed to give him notice 21 of default and election to sell and notice of trustee’s sale in 22 violation of California Civil Code § 2924, and that, as a result, 23 “all provisions contained in those documents which purport to 24 authorize the commencement of a non-judicial foreclosure are 25 26 unenforceable.” Doc. 2 at 7-8. Plaintiff further alleges that 27 although Defendant “represented to Plaintiff that it is in 28 possession of the original Promissory Note,” it actually does not 10 1 have possession of the original note and “[a]s a result, the non- 2 judicial foreclosure…is void and in violation of statute and 3 therefore cannot be the basis of a statutory non-judicial 4 foreclosure pursuant to Civil Code § 2924.” Id. at 9 (emphasis 5 in the original). 6 7 Plaintiff bases the second cause of action on alleged Id. at 8. 8 “predatory lending practices by defendant.” 9 Plaintiff’s statutory predatory lending claims have been 10 dismissed. 11 for his claim to aside the notice of default and notice of 12 Therefore, predatory lending cannot form the basis trustee’s sale. 13 Additionally, Plaintiff requests that the notice of default 14 15 16 and election to sell under deed of trust and notice of trustee’s sale be found “void and unenforceable” because Defendant does not 17 possess the original promissory note. 18 to legal authority. 19 foreclosures can be commenced without producing the original 20 promissory note. This is directly contrary It is well-established that non-judicial Non-judicial foreclosure under deeds of trust 21 is governed by California Civil Code section 2924, et seq. 22 Section 2924(a)(1) provides that a “trustee, mortgagee or 23 24 beneficiary or any of their authorized agents” may conduct the 25 foreclosure process. California courts have held that the Civil 26 Code Provisions “cover every aspect” of the foreclosure process, 27 I.E. Assoc. v Safeco Title Ins. Co., 39 Cal. 3d 281, 285 (1985), 28 11 1 and are “intended to be exhaustive,” Moeller v. Lien, 25 Cal. 2 App. 4th 822, 834 (1994). 3 There is no requirement that the party initiating foreclosure be in possession of the original note. 4 See, e.g., Candelo v. NDEX West, LLC, 2008 WL 5382259, at *4 5 (E.D. Cal. Dec. 23, 2008) (“No Requirement exists under statutory 6 7 framework to produce the original note to initiate non-judicial 8 foreclosure.”); Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 9 (S.D. Cal. Jan 5, 2009) (“Production of the original note is not 10 required to proceed with a non-judicial foreclosure.”); see also 11 Vargas v. Reconstruction Co. , 2008 U.S. Dist. LEXIS 100115, at 12 *8-9 (E.D. Cal. Dec. 1, 2008). 13 Defendant’s motion to dismiss the second cause of action is 14 15 GRANTED WIHTOUT LEAVE TO AMEND 16 17 18 C. Third Cause Of Action To Cancel The Deed Of Trust And Promissory Note For The Subject Loan. 19 Defendant moves to dismiss the third cause of action for 20 cancellation of all instruments on the grounds that: (1) 21 Plaintiff fails to allege any basis to justify cancellation; and 22 (2) alternatively, if this cause of action is liberally construed 23 as based on fraud, Plaintiff fails to meet the heightened 24 pleading standard required by Federal Rule of Civil Procedure 25 26 27 28 9(b). Cancellation of an instrument may be ordered when “there is a reasonable apprehension that if left outstanding it may cause 12 1 serious injury to a person against whom it is void or voidable.” 2 Cal. Civ. Code § 3412. 3 Mental incapacity, illegality, duress, undue influence, fraud, mistake, and forgery are grounds for 4 finding an instrument void or voidable. See Cal. Civ. Code §§ 40 5 (incapacity), 1569 (duress), 1575 (undue influence); Stevenson v. 6 7 Baum, 65 Cal. App. 4th 159, 164 (1998) (fraud); Bland v. Kelly, 8 69 Cal. App. 2d 116, 119 (1945) (mistake); Schiavon v. Arnaudo 9 Bros., 84 Cal. App. 4th 374, 378 (2000) (forgery). 10 11 12 Here, Plaintiff alleges that the instruments “were the product of multiple violations,” “the progeny of multiple violations of law,” and “derived through a process of predatory 13 lending practices.” Doc. 2 at 22. The complaint alleges none of 14 15 16 the bases for a finding of voidability. Even if Plaintiff’s allegations are liberally construed as stating a claim for fraud, 17 the allegations do not meet the heightened pleading standards 18 required for such allegations under Federal Rule of Civil 19 Procedure 9(b) (“a party must state with particularity the 20 circumstances constituting fraud”). See also Swartz v. KPMG LLP, 21 476 F.3d 756, 764 (9th Cir. 2007) (“the complaint must specify 22 such facts as the times, dates, places, benefits received, and 23 24 other details of the alleged fraudulent activity”) (citations 25 omitted). “[W]here several defendants are sued in connection 26 with an alleged fraudulent scheme,” a plaintiff must 27 “differentiate [his] allegations” and “inform each defendant 28 13 1 separately of the allegations surrounding his alleged 2 participation in the fraud.” 3 Id. at 764-65 (citations omitted). “[A] plaintiff must, at a minimum, identif[y] the role of [each] 4 defendant[] in the alleged fraudulent scheme.” Id. at 765. 5 Here, most allegations are directed at defendants 6 7 collectively, such as that “MORTGAGEIT/MERS…have engaged in 8 deceptive loan practices,” and that “[Defendants ownership claims 9 as to the property are] the product of a defective, deceptive and 10 void transaction.” 11 do not satisfy Rule 9(b). 12 Doc. 2 at 18, 22. The conclusory assertions Defendant’s motion to dismiss the third cause of action is 13 GRANTED. 14 15 16 17 18 D. Fourth Cause of Action to Quiet Title. Defendant moves to dismiss the fourth cause of action to quiet title to real property, on the grounds that: (1) 19 Plaintiff’s allegations are insufficient to state a quiet title 20 21 22 claim; and (2) the claim lacks foundation. “[A] mortgagor of real property cannot, without paying his Miller v. Provost, 23 debt, quiet his title against the mortgagee.” 24 26 Cal. App. 4th 1703, 1707 (1994) (citations omitted). 25 Plaintiff defaulted on the Subject Loan, and does not allege that 26 Here, he has since paid (or even offered to pay) the outstanding 27 balance. See Doc. 2 at 19. 28 14 1 2 3 Additionally, to the extent that the fourth cause of action is based on fraud, see id. at 10 (“…product of a defective, deceptive, and void transaction”), Plaintiff does not comply with 4 the heightened pleading standard set forth in Rule 9(b). 5 Defendant’s motion to dismiss the fourth cause of action is 6 7 GRANTED. 8 9 E. Fifth Cause of Action For An Accounting. 10 Plaintiff alleges that he “has previously requested from 11 [Defendant] and has yet to receive [] a detailed accounting 12 13 calculation and summary of the payoff balance they are demanding, 14 including the unpaid principal balance, accrued interest, unpaid 15 interest, daily interest charges and all other fees, costs or 16 expenses comprising the payoff sum.” 17 that he “is legally entitled to such an accounting, yet 18 Doc. 2 at 23. He claims [Defendant has] refused to provide one in a timely manner in 19 compliance with California Civil Code § 2943.” Id. 20 21 Accounting actions are equitable in nature and appropriate 22 when “the accounts are so complicated that an ordinary legal 23 action demanding a fixed sum is impracticable.” 24 v. Zila Indus., Inc., 66 Cal. App. 3d 1, 14 (1977) (citations 25 omitted). 26 Civic W. Corp. Normally, an accounting is appropriate where plaintiff seeks recovery in an amount that is unliquidated and 27 unascertained, and that cannot be determined without an 28 15 St. James Church v. Superior Court, 135 Cal. App. 2d 1 accounting. 2 352, 359 (1955) (internal citations omitted). 3 Here, Plaintiff is simply demanding a payoff amount or an explanation of the payoff 4 balance on his mortgage. He is not seeking recovery of the 5 payoff balance, nor recovery of any amount for which an 6 7 accounting is necessary. There is no basis for an equitable To the extent Plaintiff may be entitled to a 8 accounting claim. 9 statement of his payoff balance, any such right arises under 10 different law. 11 12 Defendant’s motion to dismiss the fifth cause of action is GRANTED. 13 14 F. Sixth Cause of Action for Injunctive Relief. 15 Defendant moves to dismiss the sixth cause of action for 16 17 injunctive relief on the grounds that: (1) it is not a valid 18 cause of action; and (2) injunctive relief is an inappropriate 19 remedy since there is no threat of continuing misconduct and 20 Plaintiff has an adequate remedy at law. 21 22 Plaintiff alleges that Defendant is “currently threatening to, and unless temporarily and permanently enjoined, will deprive 23 Plaintiff of the title to and ultimately the right of peaceful 24 25 26 possession of [his] family residence” and that “[u]nless [Defendant is] enjoined from enforcing their void loan documents, 27 Plaintiff will suffer irreparable harm.” Doc. 2 at 10. 28 Plaintiff further alleges that it is “appropriate that prior to 16 1 that occurrence, [Defendant] should be preliminarily enjoined 2 from any further actions to conclude a non-judicial foreclosure.” 3 Id. 4 “Injunctive relief is a remedy and not, in itself, a cause 5 of action, and a cause of action must exist before injunctive 6 7 relief may be granted.” Camp v. Board of Supervisors, 123 Cal. 8 App. 3d 334, 356 (1981) (quoting Shell Oil Co. v. Richter, 52 9 Cal. App. 2d 164, 168 (1942)). 10 unless “pecuniary compensation would not afford adequate relief.” 11 Cal. Civ. Proc. Code § 526. 12 Injunctive relief is unavailable Additionally, “it is not a remedy designed to right completed wrongs,” but is available to “prevent 13 threatened injury.” Gafcon, Inc. v. Ponsor & Assocs., 98 Cal. 14 15 16 17 App. 4th 1388, 1403 n.6 (2002) (citations omitted). there is a showing that the challenged action is being continued or repeated, an injunction should be denied.” 18 19 “Unless Id. Here, as all of the substantive allegations have been dismissed, Plaintiff cannot obtain injunctive relief. 20 Defendant’s motion to dismiss the sixth cause of action is 21 GRANTED. 22 23 G. Seventh Cause of Action for Damages. 24 25 26 27 28 Defendant moves to dismiss the seventh cause of action for damages on the grounds that it does not state a valid cause of action. Plaintiff alleges that “[a]s a consequence of the multiple 17 1 violations of statute ... [Defendant is] liable to Plaintiff for 2 damages suffered by [him], including general damages, 3 compensatory damages, damages for bad faith foreclosure for 4 attempting to assert a right to foreclose non-judicially through 5 the use of defective and voidable debt instruments, and for 6 7 statutory damages as provided by law.” Doc. 2 at 24-25. A request for Damages cannot form the basis of a separate 8 See Lee v. First Franklin Fin. Corp. , 2009 WL 9 cause of action. 10 1371740, at *2 (E.D. Cal. May 15, 2009) (“Injunctive relief, like 11 damages, is a remedy requested by [a party], not a separate cause 12 of action.”). Because all of the substantive allegations have 13 been dismissed, Defendant’s motion to dismiss the seventh cause 14 15 of action is GRANTED. 16 V. CONCLUSION 17 18 For the reasons set forth above Defendant’s motion to 19 dismiss is GRANTED in its entirety without prejudice, except as 20 to claims that have been dismissed with prejudice. Plaintiff has 21 not requested leave to amend. 22 23 24 SO ORDERED DATED: August 10, 2009 /s/ Oliver W. Wanger____ Oliver W. Wanger United States District Judge. 25 26 27 28 18
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