Carter v. GMAC Mortgage, LLC, et al, No. 2:2010cv00639 - Document 17 (E.D. Cal. 2010)
Court Description: MEMORANDUM AND ORDER granting 6 , 9 Motions to Dismiss signed by Judge William B. Shubb on 5/11/10: Plaintiff has twenty days from the date of this Order to file an amended complaint, if he can do so consistent with this Order. (Kaminski, H) .
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Carter v. GMAC Mortgage, LLC, et al Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 NO. CIV. 2:10-639 WBS DAD MICHAEL C. CARTER, 13 Plaintiff, 14 MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS v. 15 16 17 GMAC MORTGAGE, LCC; FIRST CALIFORNIA MORTGAGE, a California corporation; and DOES 1 through 100, inclusive, 18 Defendants. / 19 20 ----oo0oo---21 Plaintiff Michael C. Carter brought this action against 22 23 defendants GMAC Mortgage, LLC (“GMAC”) and First California 24 Mortgage (“First California”) alleging various federal and state 25 claims arising out of plaintiff’s mortgage transaction. 26 Presently before the court are defendants’ motions to dismiss the 27 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 28 I. Factual and Procedural Background 1 Dockets.Justia.com 1 On December 7, 2005, plaintiff obtained a loan from 2 First California to purchase his home, located at 1664 Baroness 3 Way in Roseville, California. 4 Judicial Notice Ex. 1.) 5 into this allegedly unaffordable loan through the conduct of 6 First California, who allegedly exaggerated plaintiff’s earnings 7 and the value of the property to secure the loan. 8 Plaintiff further alleges that he did not receive disclosures 9 required to be provided to him by the Truth in Lending Act (Compl. ¶¶ 6, 14; GMAC Req. Plaintiff claims that he was channeled (Id. ¶ 14.) 10 (“TILA”), 15 U.S.C. §§ 1601-1667f, at the time of loan 11 origination. 12 assumed or was assigned said loan” and is therefore liable for 13 these violations under “successor’s liability law.” 14 13.) 15 (Compl. ¶ 42.) The FAC alleges that GMAC “either (Id. ¶ ¶ 9, Plaintiff filed the Complaint in California Superior 16 Court in Placer County on February 18, 2010. 17 First California then removed the case to this court on March 18, 18 2010 with the consent of GMAC. 19 plaintiff asserts ten causes of action against GMAC and First 20 California. 21 Complaint for failure to state a claim upon which relief can be 22 granted. 23 II. 24 (Id.) (Docket No.1.) In his Complaint, GMAC and First California now move to dismiss the Discussion On a motion to dismiss, the court must accept the 25 allegations in the complaint as true and draw all reasonable 26 inferences in favor of the plaintiff. 27 U.S. 232, 236 (1974), overruled on other grounds by Davis v. 28 Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 2 Scheuer v. Rhodes, 416 1 (1972). 2 plead “only enough facts to state a claim to relief that is 3 plausible on its face.” 4 544, 570 (2007). 5 for more than a sheer possibility that a defendant has acted 6 unlawfully,” and where a complaint pleads facts that are “merely 7 consistent with” a defendant’s liability, it “stops short of the 8 line between possibility and plausibility.” 9 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556- 10 11 To survive a motion to dismiss, a plaintiff needs to Bell Atl. Corp. v. Twombly, 550 U.S. This “plausibility standard,” however, “asks Ashcroft v. Iqbal, 57). In general a court may not consider items outside the 12 pleadings upon deciding a motion to dismiss, but may consider 13 items of which it can take judicial notice. 14 F.3d 1370, 1377 (9th Cir. 1994). 15 notice of facts “not subject to reasonable dispute” because they 16 are either “(1) generally known within the territorial 17 jurisdiction of the trial court or (2) capable of accurate and 18 ready determination by resort to sources whose accuracy cannot 19 reasonably be questioned.” 20 Barron v. Reich, 13 A court may take judicial Fed. R. Evid. 201. GMAC and First California each submitted a request for 21 judicial notice. GMAC requests the court take notice of 22 plaintiff’s First Deed of Trust, publically recorded in the 23 Placer County Recorder’s Office. 24 take judicial notice of this document, since it is a matter of 25 public record whose accuracy cannot be questioned. 26 City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). 27 California requests the court take notice of several documents 28 related to plaintiff’s mortgage transaction found in its records (Docket No. 7.) 3 The court will See Lee v. First 1 and files. 2 these documents, since First California’s files are not a source 3 whose accuracy cannot be reasonably questioned under Federal Rule 4 of Evidence 201(b). 5 A. 6 (Docket No. 9.) The court declines to take notice of TILA Claim Plaintiff’s first cause of action prays for damages and 7 rescission of his loan under the Truth in Lending Act (“TILA”), 8 15 U.S.C. §§ 1601-1667f. 9 1. Rescission In a consumer credit transaction where the creditor 10 11 acquires a security interest in the borrower’s principal 12 dwelling, TILA provides the borrower with “a three-day 13 cooling-off period within which [he or she] may, for any reason 14 or for no reason, rescind” the transaction. 15 Horizon Home Loan Corp., 475 F.3d 418, 421 (1st Cir. 2007) 16 (citing 15 U.S.C. § 1635). 17 conspicuously disclose” this right to the borrower along with 18 “appropriate forms for the [borrower] to exercise his right to 19 rescind.” 20 McKenna v. First A creditor must “clearly and 15 U.S.C. § 1635(a). If a creditor fails to provide the borrower with the 21 required notice of the right to rescind, the borrower has three 22 years from the date of consummation to rescind the transaction. 23 Id. § 1635(f); see 12 C.F.R. § 226.23(a)(3) (“If the required 24 notice or material disclosures are not delivered, the right to 25 rescind shall expire 3 years after consummation.”). 26 1635(f) completely extinguishes the right of rescission at the 27 end of the 3-year period.” 28 410, 412, (1998); see also Miguel v. Country Funding Corp., 309 “[Section] Beach v. Ocwen Fed. Bank, 523 U.S. 4 1 F.3d 1161, 1164 (9th Cir. 2002) (“[S]ection 1635(f) represents an 2 ‘absolute limitation on rescission actions’ which bars any claims 3 filed more than three years after the consummation of the 4 transaction. (quoting King v. California, 784 F.2d 910, 913 (9th 5 Cir. 1986))); Cazares v. Household Fin. Corp., 2005 U.S. Dist. 6 LEXIS 39222, at *24-25 (C.D. Cal. 2005) (concluding that, “[i]f 7 certain Plaintiffs did exercise their rights to rescind[ ] prior 8 to the expiration of the three-year limitation period,” such 9 facts “would only entitle Plaintiffs to damages, not rescission” 10 (citing Belini v. Wash. Mut. Bank, FA, 412 F.3d 17 (1st Cir. 11 2005))). 12 Request . . . will be mailed to [d]efendants . . . [which] 13 includes a demand to rescind the loan . . . .” 14 However, plaintiff’s loan closed on December 7, 2005, putting his 15 future notice of rescission, even if sent on the date of filing 16 of the Complaint, well outside of the three-year limitations 17 period. 18 The Complaint alleges that “[a] Qualified Written (Compl. ¶ 23.) (GMAC Req. Judicial Notice Ex. 1.) Moreover, plaintiff’s rescission claim fails because he 19 has not demonstrated an ability to tender payment of the net 20 proceeds he received from the loan. 21 that rescission under TILA “should be conditioned on repayment of 22 the amounts advanced by the lender.” 23 329 F. 3d 1167, 1170 (9th Cir. 2003) (emphasis in original). 24 District courts in this circuit have dismissed rescission claims 25 under TILA at the pleading stage based upon the plaintiff’s 26 failure to allege an ability to tender loan proceeds. 27 Garza v. Am. Home Mortgage, 2009 U.S. Dist. LEXIS 7448, at *15 28 (E.D. Cal. Jan. 27, 2009) (stating that “rescission is an empty 5 The Ninth Circuit has held Yamamoto v. Bank of N.Y., See, e.g., 1 remedy without [the borrower’s] ability to pay back what she has 2 received”); Ibarra v. Plaza Home Mortgage, 2009 U.S. Dist. LEXIS 3 80581, at *22 (S.D. Cal. Sept. 4, 1009); Carnero v. Weaver, 2009 4 U.S. Dist. LEXIS 62665, at *8 (N.D. Cal. July 20, 2009); Pesayco 5 v. World Sav., Inc., 2009 U.S. Dist. LEXIS 73299, at *4 (C.D. 6 Cal. July 29, 2009); Ing Bank v. Korn, 2009 U.S. Dist. LEXIS 7 73329, at *7 (W.D. Wash. May 22, 2009). 8 alleged any facts indicating that he is able to tender sufficient 9 funds to repay the loan principal. 10 Plaintiff has not Without such facts, plaintiff cannot receive the equitable remedy of rescission. 11 2. Damages 12 The statute of limitations for a TILA damages claim is 13 one year from the date of the alleged TILA violation. 15 U.S.C. 14 § 1640(e). Plaintiff argues that the statute of limitations 15 should be tolled because the circumstances of the loan were 16 hidden from him at the outset. 17 entitled to equitable tolling of his claim, plaintiff has not 18 alleged any facts in the Complaint that would warrant tolling the 19 statute of limitations. 20 unable to discover defendants’ TILA violations until within the 21 last year because “[t]he facts surrounding this loan transaction 22 were purposefully hidden . . . .” 23 conclusory allegation is insufficient to establish the necessity 24 for equitable tolling under even the pleading standards of 25 Federal Rule of Civil Procedure 8(a). 26 1949; Cervantes v. Countrywide Home Loans, Inc., 2009 U.S. Dist. 27 LEXIS 87997, at * 13-14 (D. Ariz. 2009) (holding that equitable 28 tolling was not appropriate when plaintiffs simply alleged that Even if plaintiff is legally Plaintiff simply asserts that he was 6 (Compl. ¶¶ 21, 26.) This See Iqbal, 129 S. Ct. at 1 defendants “fraudulently misrepresented and concealed the true 2 facts related to the items subject to disclosure”). 3 Even if plaintiff’s TILA claim were timely, it is 4 currently insufficiently plead. 5 indicate what sections of TILA defendants violated, simply 6 stating that “[d]efendants committed one ore more of the 7 following violations” and listing sections of the statute. 8 (Compl. ¶ 42.) 9 close to surviving a motion to dismiss. Such vague and conclusory pleadings to not come 10 1949. 11 dismiss plaintiff’s TILA claim. 12 The claim does not so much as See Iqbal, 129 S. Ct. at Accordingly, the court will grant defendants’ motions to B. California Rosenthal Fair Debt Collection Practices Act 13 Claim 14 Plaintiff’s second cause of action alleges that 15 defendant violated the California Rosenthal Fair Debt Collection 16 Practices Act (“RFDCPA”), Cal. Civ. Code § 1788.2. 17 prohibits a host of unfair and oppressive methods of collecting 18 debt, but to be liable under the RFDCPA a defendant must fall 19 under its definition of “debt collector.” 20 LLC, 589 F. Supp. 2d 1193, 1199 (C.D. Cal. 2008). 21 collector” under the RFDCPA is “any person who, in the ordinary 22 course of business, regularly, on behalf of himself or herself or 23 others, engages in debt collection.” 24 (2008). The RFDCPA Izenberg v. ETS Svcs., A “debt Cal. Civ. Code § 1788.2(c) 25 The Complaint does not identify the sections of the 26 RFDCPA that defendant allegedly violated, and fails to allege 27 facts that would support the inference that defendant is a “debt 28 collector” under the RFDCPA. Instead, the FAC contains only a 7 1 conclusory restatement of the definition of “debt collectors” 2 under the RFDCPA without further explanation as to how 3 defendants’ actions meet these definitions. 4 Plaintiff fails to so much as plead what practices defendants 5 engaged in that violated the RFDCPA, outside of the conclusory 6 allegation that defendants “repeatedly threatened to take actions 7 not permitted by law . . . .” 8 allegations, without even identifying what part of the RFDCPA 9 each defendant violated, are insufficient to survive a motion to (Id. ¶ 50.) (Compl. ¶¶ 48-52.) Such broad 10 dismiss. 11 WL 2136777, at * 18 (N.D. Cal. July 15, 2009). 12 See Rosal v. First Fed. Bank of Cal., No. 09-1276, 2009 Additionally, foreclosure pursuant to a deed of trust 13 does not constitute debt collection under the RFDCPA. 14 Izenberg, 589 F. Supp. 2d at 1199; see also Rosal, 2009 WL 15 2136777, at *18 (dismissing RFDCPA claim as to all defendants in 16 foreclosure case); Ricon v. Recontrust Co., No. 09-937, 2009 WL 17 2407396, at *4 (S.D. Cal. Aug. 4, 2009) (dismissing with 18 prejudice plaintiff’s unfair debt collection claims in 19 foreclosure case); Pittman v. Barclays Capital Real Estate, Inc., 20 No. 09-0241, 2009 WL 1108889, at *3 (S.D. Cal. Apr. 24, 2009) 21 (dismissing with prejudice plaintiff’s Rosenthal Act claim in 22 foreclosure case because a “residential mortgage loan does not 23 qualify as a ‘debt’ under the statute”); Gallegos v. Recontrust 24 Co., No. 08-2245, 2009 WL 215406, at *3 (S.D. Cal. Jan. 28, 2009) 25 (dismissing RFDCPA claim in foreclosure case). 26 mortgage loans do not fall within the RFDCPA, the court must 27 grant defendants’ motions to dismiss plaintiff’s cause of action 28 for violations of the RFDCPA. 8 See Since residential 1 C. 2 Negligence To prove a cause of action for negligence, a plaintiff 3 must show “(1) a legal duty to use reasonable care; (2) breach of 4 that duty, and (3) proximate [or legal] cause between the breach 5 and (4) the plaintiff’s injury.” 6 66 Cal. App. 4th 1333, 1339 (1998) (citation omitted). 7 existence of a legal duty to use reasonable care in a particular 8 factual situation is a question of law for the court to decide.” 9 Vasquez v. Residential Invs., Inc., 118 Cal. App. 4th 269, 278 Mendoza v. City of Los Angeles, “The 10 (2004). 11 “perform acts . . . in such a manner as to not cause [p]laintiff 12 harm.” 13 defendants breached this duty when “they used their knowledge and 14 skill to direct [him] into a lone for which [he] was not 15 qualified . . . .” (Id. ¶ 55.) 16 Plaintiff alleges that defendants owed him a duty to (Compl. ¶ 54.) Plaintiff further contends that Plaintiff cites no authority for the proposition that 17 defendants owed a duty to not cause plaintiff harm. 18 contrary authority, a pleading of an assumption of duty by 19 defendants, or a special relationship, plaintiff cannot establish 20 defendants owed him a duty of care. 21 Bank, --- F.R.D. ---, No. CV F 09-935 LJO SMS, 2009 WL 2985446, 22 at *7 (E.D. Cal. Sept. 15, 2009); Bentham v. Aurora Loan Servs., 23 No. C-09-2059 SC, 2009 WL 2880232, at *2-3 (N.D. Cal. Sept. 1, 24 2009). 25 Absent See Hardy v. Indymac Fed. Additionally, the Complaint lumps defendants together 26 and does not distinguish between their alleged actions. 27 Defendants should not be forced to guess how their conduct was 28 allegedly negligent. See Associated Gen. Contractors of Cal., 9 1 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 2 (1983); Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 3 1988). 4 California have breached a cognizable legal duty, and accordingly 5 the court will grant defendants’ motions to dismiss plaintiff’s 6 cause of action for negligence. 7 The Complaint fails to state that GMAC and First D. Real Estate Settlement Procedures Act Claim Plaintiff’s fourth claim alleges violations of the Real 8 9 Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 10 2601-2617. 11 “failing to correctly and accurately comply with one or more of 12 the disclosure requirements provided therein.” 13 The Complaint’s RESPA claim is nothing more than a conclusory 14 allegation and recitation of the elements of a RESPA cause of 15 action with absolutely no factual enhancement. 16 allegations cannot possibly put defendants on notice of the claim 17 against them without so much as describing what sections of RESPA 18 they violated. 19 and accordingly plaintiff’s RESPA claim must be dismissed. 20 Iqbal, 129 S. Ct. at 1949. 21 E. Plaintiff alleges that defendants violated RESPA by (Compl. ¶ 63.) Plaintiff’s This falls well short of the demands of Rule 8, Breach of Fiduciary Duty Claim The elements of a breach of fiduciary duty claim are 22 23 (1) existence of a fiduciary relationship; (2) breach of the 24 fiduciary duty; and (3) damage proximately caused by that breach. 25 Roberts v. Lomanto, 112 Cal. App. 4th 1553, 1562 (2003). 26 absence of any one of these elements is fatal to the cause of 27 action.” 28 Plaintiff alleges that defendants breached their fiduciary duties “The Pierce v. Lyman, 1 Cal. App. 4th 1093, 1101 (1991). 10 1 when they steered plaintiff into a loan he could not afford. 2 (Compl. ¶ 73.) 3 “Absent special circumstances, a loan transaction is at 4 arms-length and there is no fiduciary relationship between the 5 borrower and lender.” 6 09-1035 LJO GSA, 2009 WL 2190210, at *3 (E.D. Cal. July 21, 2009) 7 (quoting Oaks Management Corp. v. Superior Court, 145 Cal. App. 8 4th 453, 466 (2006)). 9 circumstances that indicate the closing of his mortgage was Rangel v. DHI Mortgage Co., Ltd., No. CV F Plaintiff has not plead any special 10 anything but an arms-length loan transaction. 11 was plaintiff’s lender and accordingly owed no fiduciary duty to 12 plaintiff during their loan transaction. 13 secondarily liable for California First’s alleged breach because 14 California First owes plaintiff no fiduciary duty. 15 the court must dismiss plaintiff’s breach of fiduciary duty 16 claim. 17 18 F. California First GMAC cannot be held Accordingly, Fraud Claim Plaintiff’s sixth claim alleges that defendants 19 committed fraud. 20 claim for fraud are “(a) a misrepresentation (false 21 representation, concealment, or nondisclosure); (b) knowledge of 22 falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce 23 reliance; (d) justifiable reliance; and (e) resulting damage.” 24 In re Estate of Young, 160 Cal. App. 4th 62, 79 (2008). 25 the heightened pleading requirements for claims of fraud under 26 Federal Rule of Civil Procedure 9(b), “a party must state with 27 particularity the circumstances constituting the fraud.” 28 Civ. P. 9(b). In California, the essential elements of a Under Fed. R. A plaintiff must include the “who, what, when, 11 1 where, and how” of the fraud. 2 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted); Decker v. 3 Glenfed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994). 4 “[w]here multiple defendants are asked to respond to allegations 5 of fraud, the complaint must inform each defendant of his alleged 6 participation in the fraud.” 7 937, 2009 WL 2407396, at *3 (S.D. Cal. Aug. 4, 2009) (quoting 8 DiVittorio v. Equidyne Extractive Indus., 822 F.2d 1242, 1247 (2d 9 Cir. 1987)). 10 Vess v. Ciba-Geigy Corp. USA, 317 Additionally, Ricon v. Reconstrust Co., No. 09- Plaintiff’s fraud claim does not even come close to 11 surviving a motion to dismiss. First, the claim does not 12 differentiate between defendants. 13 forced to guess as to how their conduct was allegedly fraudulent. 14 See Associated Gen. Contractors of Cal., Inc. v. Cal. State 15 Council of Carpenters, 459 U.S. 519, 526 (1983); Gauvin, 682 F. 16 Supp. at 1071. 17 to specify so much as when the fraudulent statements alleged were 18 made, who specifically made them, and why they were false. 19 Plaintiff simply states that “[t]he above-state false 20 representations and one or more violations of state and federal 21 laws made by [d]efendants to [p]laintiff were designed to 22 fraudulently induce [p]laintiff to enter into said transaction.” 23 (Compl. ¶ 78.) 24 elements of a cause of action for fraud. 25 Plaintiff’s conclusory statements come nowhere close to meeting 26 the pleading standard generally required under Rule 8, let alone 27 the heightened pleading standard of Rule 9(b). 28 Ct. at 1949; Vess, 317 F.3d at 1006. Defendants should not be Second, plaintiff’s fraud allegations also fail The claim then goes on to state the remaning 12 (See id. ¶¶ 80-86.) See Iqbal, 129 S. 1 G. 2 Breach of Contract Claim To state a claim for breach of contract under 3 California law, plaintiff must allege (1) the existence of a 4 contract; (2) plaintiff’s performance or excuse for 5 nonperformance of the contract; (3) defendants’ breach of the 6 contract; and (4) resulting damages. 7 v. Tri-Valley Oil & Gas Co., 116 Cal. App. 4th 1375, 1390 (2004). 8 Plaintiff alleges that he entered into an agreement with 9 defendants for a loan and that they breached their agreement “by Armstrong Petroleum Corp. 10 failing to exercise reasonable efforts and due diligence as 11 promised . . . [and] committing the acts stated herein.” 12 ¶ 95.) (Compl. Plaintiff fails to state any facts that indicate the 13 14 existence of a contract obligating defendants to “exercise 15 reasonable efforts” or engage in “due diligence.” 16 promises are not sufficient to show the existence of a contract. 17 See Beverage Distributors, Inc. v. Olympia Brewing Co., 440 F.2d 18 21, 30 (9th Cir. 1971). 19 the existence of terms in the loan contract that obligated 20 defendants to perform the actions mentioned in the Compliant. 21 Iqbal, 129 S. Ct. at 1949. 22 existence of a contract to provide an affordable loan plausible, 23 plaintiff cannot state a claim for breach of contract. 24 Hardy, 2009 WL 2985446, at *5. 25 defendants’ motions to dismiss plaintiff’s claim for breach of 26 contract. 27 28 H. Such a vague Plaintiff states no facts that indicate Without alleging facts that make the See Accordingly, the court will grant Breach of the Implied Covenant of Good Faith and Fair Dealing Claim 13 1 “Every contract imposes upon each party a duty of good 2 faith and fair dealing in its performance and its enforcement.” 3 Marsu, B.V. v. Walt Disney Co., 185 F.3d 932, 937 (9th Cir. 1999) 4 (quoting Carma Developers, Inc. v. Marathon Dev. Cal., Inc., 2 5 Cal. 4th 342, 371 (1992)). 6 imposed by the implied covenant of good faith and fair dealing is 7 ‘that neither party will do anything which will injure the right 8 of the other to receive the benefits of the agreement.’” 9 v. Mobile Aire Estates, 125 Cal. App. 4th 578, 589 (2005) “A typical formulation of the burden Andrews 10 (quoting Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 573 (1973)). 11 Plaintiff alleges that defendants violated the implied covenant 12 of good faith and fair dealing by failing to comply with 13 “applicable laws” and failing to pay as much in regard to 14 [p]laintiffs [sic] financial interests as to [d]efendants’ 15 financial interests.” 16 (Compl. ¶¶ 99-100.) “Generally, no cause of action for the tortious breach 17 of the implied covenant of good faith and fair dealing can arise 18 unless the parties are in a ‘special relationship’ with 19 ‘fiduciary characteristics.’” Pension Trust Fund for Operating 20 Eng’rs v. Fed. Ins. Co., 307 F.3d 944, 955 (9th Cir. 2002) 21 (citing Mitsui Mfrs. Bank v. Superior Court, 212 Cal. App. 3d 22 726, 730 (1989)). 23 available to parties of an ordinary commercial transaction where 24 the parties deal at arms’ length.” 25 omitted). 26 whether there is “a fiduciary relationship in which the financial 27 dependence or personal security by the damaged party has been 28 entrusted to the other.” “Thus, the implied covenant tort is not Id. (internal citations Whether a lender is subject to this tort depends on Mitsui, 212 Cal. App. 3d at 731; 14 1 Pension Trust Fund, 306 F.3d at 955. 2 plaintiff has not alleged any facts that distinguish this case 3 from an ordinary arms length loan transaction and accordingly has 4 not pled a breach of the covenant of good faith and fair dealing. 5 The claim is also inadequate because it lumps all defendants 6 together and fails to explain what actions each individual 7 defendant took to violate the covenant of good faith and fair 8 dealing. 9 court must grant defendants’ motions to dismiss this claim. 10 I. As previously noted, See Gauvin, 682 F. Supp. at 1071. Accordingly, the California’s Unfair Competition Law Claim 11 California’s Unfair Competition Law (“UCL”), Cal. Bus. 12 & Prof. Code §§ 17200-17210, prohibits “any unlawful, unfair, or 13 fraudulent business act or practice.” 14 L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). 15 of action is generally derivative of some other illegal conduct 16 or fraud committed by a defendant, and “[a] plaintiff must state 17 with reasonable particularity the facts supporting the statutory 18 elements of the violation.” 19 Cal. App. 4th 612, 619 (1993). Cal-Tech Commc’ns, Inc. v. This cause Khoury v. Maly’s of Cal., Inc., 14 20 Plaintiff’s claim under the UCL is vague and 21 conclusory, simply alleging that “[d]efendants’ acts, as alleged 22 herein, constitute unlawful, unfair, and/or fraudulent busines 23 practices . . . .” 24 defendants together and fails to identify any specific act taken 25 by either of the named defendants. 26 vague and conclusory allegations are insufficient to inform 27 defendants as to their liability. See Associated Gen. Contractors 28 of Cal., 459 U.S. at 526; Gauvin, 682 F. Supp. at 1071; see also (Compl. ¶ 88.) 15 Plaintiff’s claim lumps all (See id. ¶¶ 88-91.) Such 1 Lingad v. Indymac Fed. Bank, No Civ. 2:09-02347 GEB JFM, --- F. 2 Supp. 2d ----, 2010 WL 347994, at *11 (E.D. Cal. Jan. 29, 2010). 3 The court has already indicated it will dismiss plaintiff’s other 4 causes of action against defendants for failure to state a claim. 5 Since plaintiff has failed to state a claim on any of these 6 grounds, and because these grounds appear to be the sole basis 7 for plaintiff’s UCL claim, plaintiff has necessarily failed to 8 state a claim against defendants under the UCL. 9 court will grant defendants’ motions to dismiss plaintiff’s UCL 10 Accordingly, the cause of action. 11 J. 12 Injunctive Relief Plaintiff’s final claim purports to state a cause of 13 action for injunctive relief. 14 independent claim, rather it is only a form of relief. 15 McDowell v. Watson, 59 Cal. App. 4th 1155, 1159 (1997) 16 (“Injunctive relief is a remedy and not, in itself a cause of 17 action . . . .” (internal quotation marks omitted)). 18 plaintiff’s other claims have been dismissed and injunctive 19 relief is not a cause of action in and of itself, the court must 20 grant defendants’ motions to dismiss plaintiff’s final cause of 21 action as well. 22 Injunctive relief is not an See Because IT IS THEREFORE ORDERED that GMAC and First 23 California’s motions to dismiss be, and the same hereby are, 24 GRANTED. 25 /// 26 /// 27 /// 28 /// 16 1 Plaintiff has twenty days from the date of this Order 2 to file an amended complaint, if he can do so consistent with 3 this Order. 4 DATED: May 11, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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