Burrows et al v. Bank of America et al, No. 2:2009cv01813 - Document 29 (E.D. Cal. 2010)
Court Description: ORDER granting 20 Dft's Motion to Dismiss, signed by Judge Garland E. Burrell, Jr., on 1/11/10. Pltf, however, is GRANTED 10 days from the date on which this order is filed within which to file a second amended complaint curing any deficiencies he opines he can remedy. (Kastilahn, A)
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Burrows et al v. Bank of America et al Doc. 29 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 KENNETH A. BURROWS, 9 Plaintiff, 10 11 ) ) ) ) ) ) ) ) ) ) v. BAC HOME LOANS SERVICING, LP, 12 Defendant. 2:09-cv-01813-GEB-DAD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT* 13 14 On November 13, 2009, Defendant BAC Home Loan Servicing, LP filed 15 a motion under Federal Rule of Civil Procedure 12(b)(6)(“Rule 16 12(b)(6)”) in which it seeks dismissal of Plaintiff’s first amended 17 complaint. 18 stated below, Defendant’s motion to dismiss is GRANTED. 19 I. 20 Plaintiff did not file an opposition. For the reasons LEGAL STANDARD A motion under Rule 12(b)(6) “challenges a complaint’s compliance 21 with . . . pleading requirements.” 22 Servicing, LP, No. S-09-1316 LKK/DAD, 2009 WL 3429622, at *1 (E.D. 23 Cal. Oct. 22, 2009). 24 statement of the claim showing that the pleader is entitled to relief 25 . . . .” 26 defendant fair notice of what the [plaintiff’s] claim is and the Champlaie v. BAC Home Loans A pleading must contain “a short and plain Fed. R. Civ. P. 8(a)(2). The complaint must “give the 27 28 * argument. This matter is deemed to be suitable for decision without oral E.D. Cal. R. 230(g). 1 Dockets.Justia.com 1 grounds upon which relief rests . . . .” Bell Atlantic Corp. V. 2 Twombly, 550 U.S. 544, 555 (2007). 3 conclusions or a formulaic recitation of the elements of a cause of 4 action will not do. 5 assertions devoid of further factual enhancement.” 6 129 S. Ct. 1937, 1949 (2009). “A pleading that offers labels and Nor does a complaint suffice if it tenders naked Ashcroft v. Iqbal, In deciding a motion under Rule 12(b)(6), the material 7 8 allegations of the complaint are accepted as true and all reasonable 9 inferences are drawn in favor of the plaintiff. See al-Kidd v. 10 Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 11 conclusory statements nor legal conclusions are entitled to a 12 presumption of truth. 13 dismissal, the plaintiff must allege “only enough facts to state a 14 claim to relief that is plausible on its face.” 15 547. 16 factual content that allows the court to draw the reasonable inference 17 that the defendant is liable for the misconduct alleged.” 18 S. Ct. at 1949. 19 possibility that a defendant has acted unlawfully.” 20 complaint pleads facts that are merely consistent with a defendant’s 21 liability, it stops short of the line between possibility and 22 plausibility of entitlement to relief.” 23 omitted). See Iqbal, 129 S. Ct. at 1949-50. To avoid Twombly, 550 U.S. at “A claim has facial plausibility when the plaintiff pleads Iqbal, 129 Plausibility, however, requires more than “a sheer II. 24 25 However, neither Id. “When a Id. (quotations and citation BACKGROUND Plaintiff alleges he “entered into a contract with the owner of 26 the real property located at 1283 Prospector Trail in South Lake 27 Tahoe, California to purchase” the property at that address (the 28 “Subject Property”). (First Amended Compl. (“FAC”) ¶ 4.) 2 To execute 1 the transaction, “Plaintiff entered into negotiations with [Defendant] 2 and Guaranty Bank.” 3 were ongoing, the Subject Property “was in foreclosure and . . . 4 scheduled to be sold at an auction on more than one occasion . . . .” 5 (Id. ¶ 5.) 6 extend the date of the foreclosure sale on [the Subject Property]” to 7 June 4, 2009 to allow Plaintiff time to complete the purchase. 8 However, Plaintiff alleges Defendant allowed the Subject Property to 9 be sold on or about May 4, 2009. (Id.) Plaintiff alleges that while negotiations Plaintiff further alleges Defendant “orally agreed to (Id. ¶ 7.) (Id.) Plaintiff alleges the 10 sale of the Subject Property at the auction “caus[ed] [him] financial 11 loss as well as emotional stress and duress.” (Id. ¶¶ 5, 7.) 12 Plaintiff’s original complaint was dismissed in a Minute Order 13 filed September 25, 2009, and Plaintiff was granted leave to file a 14 first amended complaint. Plaintiff’s first amended complaint alleges 15 five claims under California law: breach of contract, fraud, 16 intentional infliction of emotional distress, negligent infliction of 17 emotional distress, and breach of the covenant of good faith and fair 18 dealing. III. 19 20 21 A. DISCUSSION Breach of Contract Claim Plaintiff’s breach of contract claim is premised upon Defendant’s 22 oral promise to postpone the foreclosure sale. 23 claim should be dismissed under the “law of the case doctrine” since 24 the September 25, 2009 Minute Order found this claim was an 25 unenforceable oral contract under the statute of frauds. 26 since it is unclear whether this reason was a basis for dismissal in 27 the Minute Order, the “law of the case doctrine” is not applicable. 28 3 Defendant’s argue this However, 1 However, Plaintiff has not alleged consideration was given for 2 the oral promise on which he relies. 3 Defendants’ promise was “simply [a] gratuitous oral promise[]” and an 4 unenforceable agreement. 5 (1980). 6 supported Defendant’s oral promise to postpone the foreclosure sale, 7 Defendant’s motion to dismiss Plaintiff’s breach of contract claim is 8 granted. Absent consideration, Beggerly v. Gbur, 112 Cal. App. 3d 180, 190 Since Plaintiff has not alleged that any consideration 9 B. Plaintiff’s Fraud Claim 10 Defendant also seeks dismissal of Plaintiff’s fraud claim, 11 arguing Plaintiff has failed to satisfy the pleading requirements of 12 Federal Rule of Civil Procedure Rule 9(b) (“Rule 9(b)”). 13 requires that “in alleging fraud . . . a party . . . [must] state with 14 particularity the circumstances constituting fraud or mistake.” 15 R. Civ. P. 9(b). 16 state-law causes of action” brought in federal court. 17 Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). 18 allegation in support of this claim is that Defendant “orally agreed 19 to extend the date of the foreclosure sale” to June 4, 2009, and 20 despite this representation, Defendant allowed the Subject Property to 21 be sold at an auction on an earlier date. 22 allegation is insufficient to satisfy the heightened pleading standard 23 of Rule 9(b). 24 C. Rule 9(b) Fed. “Rule 9(b)’s particularity requirement applies to Vess-Ciba-Geigy Plaintiff’s sole (FAC ¶ 5.) This single Therefore, this claim is dismissed. Plaintiff’s Claims of Intentional & Negligent Infliction of Emotional Distress 25 Defendant argues Plaintiff’s intentional and negligent infliction 26 of emotional distress claims should be dismissed since “Plaintiff[‘s] 27 [first amended complaint] lacks any facts to support” these claims. 28 4 1 Under California law, to state a claim for “intentional 2 infliction of emotional distress a plaintiff must show: (1) outrageous 3 conduct by the defendant; (2) the defendant’s intention of causing or 4 reckless disregard of the probability of causing emotional distress; 5 (3) the plaintiff’s suffering severe or extreme emotional distress; 6 and (4) actual and proximate causation of the emotional distress by 7 defendant’s outrageous conduct. 8 extreme as to exceed all bounds of that usually tolerated in a 9 civilized society.” Conduct, to be outrageous, must be so Huntingdon Life Sciences, Inc. v. Stop Huntingdon 10 Animal Cruelty, USA, Inc., 129 Cal. App. 4th 1228, 1259 11 (2005)(quotations and citations omitted). 12 Plaintiff alleges in his intentional infliction of emotional 13 distress claim, “[D]efendant[‘s] actions constitute extreme and 14 outrageous conduct that have caused him to suffer headaches, 15 sleeplessness, and other physical symptoms of extreme stress . . . .” 16 (FAC ¶ 13.) 17 breach of an oral contract. 18 state an intentional infliction of emotional distress claim, since it 19 does not satisfy the extreme or outrageous element of the tort. 20 Therefore, Defendant’s dismissal motion on this claim is granted. 21 Defendant also seeks dismissal of Plaintiff’s negligent However, the only conduct attributed to Defendant is This alleged breach is insufficient to 22 infliction of emotional distress claim. 23 negligent causing of emotional distress is not an independent tort, 24 but the tort of negligence.” 25 1064, 1072 (1992)(emphasis omitted). 26 required to allege the traditional elements of a negligence claim; 27 that is, duty, breach of duty, causation and damages. 28 However, “[t]he existence of a legal duty to use reasonable care in a Under California law, “the Burgess v. Superior Court, 2 Cal. 4th 5 Therefore, Plaintiff was See id. 1 particular factual situation is a question of law for the court to 2 decide.” 3 278 (2004). Vasquez v. Residential Invs. Inc., 118 Cal. App. 4th 269, 4 Plaintiff merely alleges Defendant “has negligently caused him to 5 suffer general damages by breaching their general duty to him . . . .” 6 (FAC ¶ 16.) 7 owed Plaintiff a legal duty of care that could give rise to a claim 8 for negligent infliction of emotional distress. 9 portion of Defendant’s motion is also granted. 10 D. This allegation is insufficient to demonstrate Defendant Therefore, this Plaintiff’s Claim of Breach of the Implied Covenant of Good Faith And Fair Dealing 11 12 Defendant also seeks dismissal of Plaintiff’s breach of the 13 implied covenant of good faith and fair dealing claim because of 14 Plaintiff’s failure to plead an enforceable contract. 15 California law, in “every contract there is an implied covenant that 16 neither party shall do anything which will have the effect of 17 destroying or injuring the right of the other party to receive the 18 fruits of the contract.” 19 4th 354, 363 (1997)(quotations omitted). 20 of the implied covenant of good faith and fair dealing . . . depends 21 on the existence of an enforceable contract. 22 contract, there is no cause of action for breach of the implied 23 covenant.” 24 1489 (2003). 25 contract existed between the parties, he cannot state a claim for 26 breach of the implied covenant of good faith and fair dealing. 27 Therefore, Defendant’s motion to dismiss this claim is granted. Under Locke v. Warner Bros., Inc., 57 Cal. App. However, a claim for “breach In the absence of a Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477, Since Plaintiff has not alleged that an enforceable 28 6 1 2 IV. CONCLUSION For the stated reasons, Defendant’s motion to dismiss is GRANTED. 3 Plaintiff, however, is granted ten (10) days from the date on which 4 this order is filed within which to file a second amended complaint 5 curing any deficiencies he opines he can remedy. 6 Dated: January 11, 2010 7 8 9 GARLAND E. BURRELL, JR. United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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