(PS) Bridgeman v. United State of America et al, No. 2:2010cv01457 - Document 87 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/20/11 ORDERING that T.D. Service Company's Request for judicial Notice is GRANTED. Federal National Mortgage Association and Fremont Bank's Request for judicial notice is GRANTED. Plaintiff's Request for Judicial Notice is GRANTED. IT IS FURTHER RECOMMENDED that the Motion to Dismiss Plaintiff's First Amended Complaint filed by defendant T.D. Service Company 21 be granted. The Motion to Dismiss Plaintiff's First Amended Complaint filed by defendant Fremont Bank and Federal National Mortgage Corporation 25 be granted. The Motion to dimsiss Plaintiff's First Amended Complaint filed by defendant United States of America [5 6], which the Court construes a Motion for Judgment on the pleadings be granted in part. Plaintiff's First Amended Complaint 20 be dismissed with prejudice as to all defendants. This Case be closed and all dates in this matter be vacated. The se Findings and Recommendations are submitted to U.S. District Judge John A. Mendez. Within fourteen days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all partes. (Mena-Sanchez, L)

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(PS) Bridgeman v. United State of America et al Doc. 87 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 HARLEY S. BRIDGEMAN, JR., 11 12 13 14 15 Plaintiff, No. 2:10-cv-01457 JAM KJN PS v. UNITED STATES OF AMERICA, FREMONT BANK, TD SERVICE COMPANY, FEDERAL NATIONAL MORTGAGE ASSOCIATION and DOES 1-200, 16 ORDER and FINDINGS AND RECOMMENDATIONS Defendants. / 17 18 Presently before the court1 are: (1) a motion to dismiss plaintiff’s First Amended 19 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendant T.D. Service 20 Company (Dkt. No. 21); (2) a motion to dismiss plaintiff’s First Amended Complaint pursuant to 21 Federal Rule of Civil Procedure 12(b)(6) filed by defendants Fremont Bank and Federal National 22 Mortgage Association (Dkt. No. 25); and (3) a “motion to dismiss” plaintiff’s First Amended 23 Complaint pursuant to Federal Rules of Civil Procedure 12(h)(3) and 12(c) filed by defendant 24 United States of America (Dkt. No. 56). Although styled a “motion to dismiss,” the motion filed 25 1 26 This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 Dockets.Justia.com 1 by the United States of America (“United States”) is more accurately characterized as a motion to 2 dismiss for lack of jurisdiction and a motion for judgment on the pleadings because the United 3 States already filed an answer to plaintiff’s First Amended Complaint (Dkt. No. 24).2 See 4 Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam). 5 On November 18, 2010, the undesigned conducted a hearing on the motions to 6 dismiss filed by T.D. Service Company, Fremont Bank, and Federal National Mortgage 7 Association (collectively, the “Financial Defendants”). (Dkt. No. 66.) The Financial Defendants 8 were represented by their respective counsel via telephone. Plaintiff appeared in person and on 9 his own behalf. Assistant United States Jason Ehrlinspiel appeared at the November 18th 10 hearing on behalf of the United States, and plaintiff’s objection to the presence of Mr. Ehrlinspiel 11 at the hearing was noted on the record. That objection is overruled because the United States had 12 a right to have its counsel present at the hearing on other parties’ motions to dismiss, which was, 13 in any event, a public hearing. The motion filed by the United States was set for hearing on 14 December 9, 2010, and the undersigned submitted that motion on the briefs and record in this 15 case (Dkt. No. 76). See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). Having reviewed the 16 briefs and record in this case and having considered the parties’ respective arguments, the 17 undersigned recommends that plaintiff’s First Amended Complaint be dismissed with prejudice. 18 I. 19 BACKGROUND A. 20 Factual Background As explained below in the sub-section addressing the procedural history in this 21 case, plaintiff’s First Amended Complaint (Dkt. No. 20) is the operative pleading in this action. 22 The factual allegations in the First Amended Complaint appear under “headers” that denote each 23 2 24 25 26 Federal Rule of Civil Procedure 12(c) provides: “After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” To the extent that the United States’s motion is one for judgment on the pleadings, it is properly before this court because the pleadings are closed as to the United States. See Whitson v. Bumbo, No. C 07-05597 MHP, 2009 WL 1515597, at *4 (N.D. Cal. Apr. 16, 2009) (unpublished); Johnson v. Dodson Pub. Schs., Dist. No. 2-A(C), 463 F. Supp. 2d 1151, 1156 (D. Mont. 2006). 2 1 of plaintiff’s eight claims for relief. Thus, this factual summary generally proceeds claim-by- 2 claim, instead of in a temporal narrative fashion. 3 In the First Amended Complaint, plaintiff alleges that he was an Air Traffic 4 Control Specialist at the Oakland Air Route Traffic Control Center and was “removed from his 5 position by a FAA/DOT supervisor . . . for what has been described in part, as a mental state 6 problem.” (First Am. Comp. ¶ 6.) Plaintiff alleges that he was “broken down” and subsequently 7 deemed to be “medically incapacitated” and, therefore, not entitled to a medical clearance by “the 8 FAA/DOT Western Pacific Regional Flight surgeon . . . and [the] ZOA Air Traffic Manager.” 9 (Id. ¶ 7.) Plaintiff was required to have a medical clearance to perform his job. (Id.) Plaintiff 10 further alleges that he was forced against his will “seek and obtain evaluations and treatment 11 from psychiatric physicians and others.” (Id.) He alleges that he complied “to the extent 12 practicable,” but refused to disclose “certain information.” (Id. ¶¶ 7-8.) In regards to his refusal 13 to provide certain information, plaintiff maintains that: (1) he had a “duty” not to disclose certain 14 information; (2) the FAA/DOT Western Pacific Regional Flight Surgeon and the ZOA Air 15 Traffic Manager “have a duty not to disclose or force others to disclose information that violates, 16 minimally, 5 U.S.C. § 2302(b)(8)”;3 and (3) the ZOA Air Traffic Manager has indicated “that 17 18 19 20 3 Plaintiff does not identify the information that he withheld. However, plaintiff attached Exhibit A to his First Amended Complaint, which is a memorandum from plaintiff to Jeff Tilley that indicates that plaintiff believed that he was instructed that “it would be best not to discuss” work related issues with a psychiatrist for “safety and security reasons.” (First Am. Compl., Ex. A.) Title 5 of the United States Code addresses Government Organization and Employees. In part, 5 U.S.C. § 2302(b)(8) provides: 21 22 23 24 (b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-... (8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of-- 25 26 (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences-3 1 certain information should not be disclosed.” (See id. ¶¶ 9, 10, 12.) Plaintiff’s refusal to make 2 disclosures allegedly resulted in the flight surgeon concluding that plaintiff’s therapy was “not 3 meaningful” and, ultimately, in plaintiff’s termination from employment for failure to maintain a 4 medical clearance. (See id. ¶¶ 8, 11.) 5 The allegations summarized above are contained in the section of the First 6 Amended Complaint addressing plaintiff’s claim pursuant to the Federal Tort Claims Act 7 (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., which is asserted only against the United States in 8 connection with plaintiff’s termination from employment and alleged intentional infliction of 9 emotional distress. Notably, plaintiff affirmatively states in his opposition briefs that he is not 10 alleging a wrongful termination claim. (Pl.’s Opp’n to Fin. Defs.’ Mots. to Dismiss at 4:5-7 11 (stating that plaintiff “has not filed a cause of action for wrongful termination and does not know 12 how it applies to this case, if at all.”), Dkt. No. 58; Pl.’s Opp’n to United States’s Mot. to 13 Dismiss at 6 (“[Plaintiff] has not filed a claim for wrongful termination.”), Dkt. No. 63.) 14 The remaining seven claims in the First Amended Complaint are asserted against 15 “all defendants”—without any distinction as to which alleged wrongful acts were committed by 16 which defendant—and relate to the foreclosure and completed trustee’s sale of plaintiff’s home. 17 (i) a violation of any law, rule, or regulation, or 18 19 20 21 22 23 (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or (B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences-- 24 (i) a violation of any law, rule, or regulation, or 25 26 (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 4 1 A notice of default was recorded as to plaintiffs’s family home on November 13, 2009, and a 2 trustee’s sale was scheduled for June 16, 2010. (First Am. Compl. ¶ 3.) Plaintiff alleges that the 3 trustee’s sale occurred on July 13, 2010. (See id. ¶¶ 36, 45.) 4 Plaintiff’s second claim for relief seeks to quiet title in the property located at 5 2650 Leaning Tree Road, Placerville, CA 95667. (See id. ¶¶ 16-23.) Plaintiff alleges that he and 6 his wife applied for a “Government Home Affordable Program (HAMP) home loan modification 7 through Fremont Bank . . . toward the end of 2009” and that Fremont Bank offered plaintiff and 8 his wife a HAMP loan modification in the beginning of 2010, but that plaintiff and his wife 9 could not afford the modification.4 (Id. ¶¶ 21-22.) Plaintiff alleges that the foreclosure and sale 10 of the subject property was “brought about by the wrongful acts and omissions of the 11 Defendants.” (Id. ¶ 23.) 12 In his third claim for relief, plaintiff seeks to enjoin the foreclosure and trustee’s 13 sale of the subject property. (Id. ¶¶ 24-34.) Plaintiff alleges that T.D. Service Co., Fremont 14 Bank, and Federal National Mortgage Association recorded a notice of default on November 13, 15 2009, and noticed a trustee’s sale for June 16, 2010. (Id. ¶¶ 31-32 & Exs. B, C.) Plaintiff 16 disputes the breach that brought about the default on the grounds that the wrongful acts or 17 omissions of “the defendants” brought it about. (Id. ¶ 34.) However, as noted above, plaintiff 18 alleges that the trustee’s sale already took place on July 13, 2010. (Id. ¶¶ 36, 45.) 19 20 21 22 23 24 4 One district court has described the HAMP program as follows: HAMP is a government program, established pursuant to the Emergency Economic Stabilization Act of 2008, designed to promote loan modification and other foreclosure prevention services. Under HAMP, individual loan servicers voluntarily enter into contracts with Fannie Mae, acting as the financial agent of the United States, to perform loan modification services in exchange for certain financial incentives. The servicer’s obligations under HAMP are set forth in the HAMP Agreement, as well as in Program Guidelines established by the Department of the Treasury. 25 26 Villa v. Wells Fargo, No. 10CV81 DMS (WVG), 2010 WL 935680, at *1 (S.D. Cal. Mar. 15, 2010) (unpublished). 5 1 Plaintiff’s fourth claim for relief seeks recovery for “negligence per se.” (First 2 Am. Compl. ¶¶ 35-42.) This claim is premised on the acts and omissions of defendants, 3 allegedly acting under the authority of the Secretary of the Department of Housing and Urban 4 Development, which resulted in a wrongful foreclosure. (See id. ¶¶ 36-38.) This claim asserts 5 that T.D. Service Company offered plaintiff what amounted to a release of liability in exchange 6 for a non-monetary resolution of the foreclosure action, and that this act (and possibly others) 7 violated California Civil Code § 2924l5 and California Business and Professions Code § 17200, 8 and were thus “negligent as a matter of law.” (See First Am. Compl. ¶¶ 38-41.) Plaintiff does 9 not allege the precise nature of any such violation and does not separately seek relief for the 10 actual violations of these statutes—his claim is limited to a negligence claim under a negligence 11 per se theory. 12 Plaintiff’s fifth claim alleges an additional claim for “negligence per se.” (First 13 Am. Compl. ¶¶ 43-48.) This claim generally alleges that T.D. Service Co., Fremont Bank, and 14 Federal National Mortgage Association were negligent by violating the following: “28 U.S.C. 15 § 2409a,6 the National Housing Act,7 TILA,8 RESPA,9 the Federal Housing Enterprise Financial 16 17 18 19 20 21 22 5 This section essentially pertains to the filing of a “declaration of non-monetary status” by a trustee on a deed of trust when that trustee “maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee.” Cal. Civ. Code § 2924l(a). It is unclear how any purported violation of this provision may support a negligence claim. 6 Generally, Section 2409a addresses real property quiet tile actions that involve a dispute about title where the United States claims an interest. Plaintiff has not precisely alleged how this statute is implicated insofar as his negligence claims are concerned. 7 Plaintiff has not specifically elaborated on any specific violation of the National Housing Act, 12 U.S.C. §§ 1701 et. seq. 23 8 24 25 26 Plaintiff’s First Amended Complaint does not allege or explain the precise basis for any purported violation of the Truth In Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. 9 Although plaintiff has not explained the precise basis for any violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq., it appears from plaintiff’s pleading that he is alleging a violation of 12 U.S.C. § 2605. 6 1 Safety and Soundness Act,10 contractual duties . . . pertaining to loans, codes of conduct, . . . and 2 other applicable laws.” (First Am. Compl. ¶ 47.) Specifically, plaintiff contends that he was 3 deprived of disclosures regarding “appraisal, evaluation, and reports on multiple loan 4 transactions during the initiation of the loan in default, qualified written requests pursuant to 12 5 U.S.C. § 2605, [and] loan insurance.” (First Am. Compl. ¶ 47.) He does not specify which acts 6 or omissions violated which particular statute other than the violation of 12 U.S.C. § 2605. 7 Plaintiff also vaguely alleges that these defendants made misrepresentations and charged or 8 attempted to charge excessive fees, and that “some all of these acts and/or omissions” were not 9 known to plaintiff until the notice of default was recorded. Again, however, plaintiff styles this 10 claim as one for negligence, not claims for violations of these particular statutes, breach of 11 contract, or fraud. 12 Plaintiff’s sixth claim for relief alleges a claim for “wrongful foreclosure.” (First 13 Am. Compl. ¶¶ 49-57.) Plaintiff generally alleges that the trustee’s sale of his property was 14 “wrongful for numerous reasons, including those which have already been stated herein.” (Id. ¶ 15 50.) However, he also alleges that the trustee’s sale violated 28 U.S.C. § 2409a, but does not 16 explain the nature of the violation. 17 Plaintiff’s seventh claim is one for “cancellation of instrument,” resulting from the 18 alleged wrongful foreclosure and trustee’s sale. (First Am. Compl. ¶¶ 58-61.) This claim is, in 19 essence, seeking relief that is derivative of plaintiff’s wrongful foreclosure claim. 20 Finally, plaintiff’s eighth claim for relief seeks the imposition of a constructive 21 trust. (Id. ¶¶ 62-64.) Again, this request for a constructive trust is a form of relief and is 22 derivative of plaintiff’s other claims. 23 B. 24 Procedural History This case has a rather twisted procedural history. Accordingly, it is recounted 25 10 26 Plaintiff has not explained the precise basis for any violation of the Federal Housing Enterprise Financial Safety and Soundness Act, 12 U.S.C. §§ 4501 et seq. 7 1 here in some detail. 2 On June 14, 2010, plaintiff filed his original complaint in this action (Dkt. No. 1), 3 which was prior to the occurrence of the trustee’s sale of plaintiff’s home. At no time did 4 plaintiff seek a temporary restraining order or preliminary injunction from the court to stave off 5 the trustee’s sale. Defendants T.D. Service Company and Fremont Bank filed separate motions 6 to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 7 Nos. 13, 17.) 8 In response to T.D. Service Company’s and Fremont Bank’s respective motions to 9 dismiss, and prior to the hearing and resolution of those motions, plaintiff filed, on July 28, 2010, 10 a First Amended Complaint. (Dkt. No. 20.) Plaintiff properly filed his First Amended 11 Complaint “as a matter of course” pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). 12 T.D. Service Company moved to dismiss the First Amended Complaint pursuant 13 to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 21.) Defendants Fremont Bank and 14 Federal National Mortgage Association also moved to dismiss the First Amended Complaint 15 pursuant to Rule 12(b)(6). (Dkt. No. 25.) In the interest of judicial economy, the court reset the 16 hearings on those motions to dismiss for October 7, 2010, with the intention of hearing those 17 motions together. (Dkt. No. 26.) Meanwhile, defendant United States filed an answer to the 18 First Amended Complaint. (Dkt. No. 24.) 19 On September 9, 2010, plaintiff filed a “Second First Amended Complaint” in this 20 matter, which will be referred to as the Second Amended Complaint. (Dkt. No. 27.) The court’s 21 docket does not indicate that plaintiff sought the other parties’ written consent or leave to amend 22 from the court, as required by Federal Rule of Civil Procedure 15(a)(2). The Second Amended 23 Complaint attempted to add three additional FTCA claims against the United States. Despite 24 plaintiff’s failure to seek leave to amend, T.D. Service Company filed a motion to dismiss the 25 Second Amended Complaint pursuant to Rule 12(b)(6), and the United States filed an answer to 26 the Second Amended Complaint. (Dkt. Nos. 29, 31.) 8 1 On September 21, 2010, plaintiff filed a “Third First Amended Complaint,” which 2 will be referred to as the Third Amended Complaint. (Dkt. No. 32.) Again, the court’s docket 3 does not indicate that plaintiff sought the other parties’ written consent or leave to amend from 4 the court prior to filing the Third Amended Complaint. The Third Amended Complaint again 5 attempted to add three additional FTCA claims against the United States and a claim of the 6 deprivation of constitutional rights, apparently pursuant to 42 U.S.C. § 1983, against Fremont 7 Bank and Federal National Mortgage Association. 8 9 Curiously, on September 21, 2010, plaintiff also filed a written opposition to T.D. Service Company’s motion to dismiss plaintiff’s First Amended Complaint. (Dkt. No. 33.) 10 Then, on September 23, 2010, T.D. Service Company filed a motion to dismiss plaintiff’s Third 11 Amended Complaint pursuant to Rule 12(b)(6). (Dkt. No. 44.) Fremont Bank, Federal National 12 Mortgage Association, and the United States did not respond to the Third Amended Complaint. 13 On September 29, 2010, plaintiff filed a document entitled “Plaintiff’s Objection 14 to Assertions of Second Or Third Amended Complaint.” (Dkt. No. 46.) In that submission, 15 plaintiff states the following: 16 17 This notice is to inform that plaintiff objects to any party that has asserted a SECOND or THIRD AMENDED COMPLAINT made by plaintiff because plaintiff has not filed a SECOND or THIRD AMENDED COMPLAINT up to this date for this case. 18 19 (Id.) Plaintiff’s statement is contradicted by the court’s docket in this case. It appears that 20 plaintiff believed that his “Second First Amended Complaint” and “Third First Amended 21 Complaint” were not attempts to amend his pleading. It is uncertain what purpose those later- 22 filed pleadings served other than attempts to amend plaintiff’s pleadings. 23 As reflected in an order entered October 1, 2010, the undersigned concluded that 24 plaintiff exhausted his single amendment as a matter of course when he filed his First Amended 25 Complaint. Accordingly, the court struck: (1) plaintiff’s “Second First Amended Complaint”; 26 (2) the United States’s answer to the Second Amended Complaint; and (3) plaintiff’s “Third First 9 1 Amended Complaint.” (Dkt. No. 51.) The court also ordered that it would consider the motions 2 to dismiss the First Amended Complaint filed by T.D. Service Company, Fremont Bank, and 3 Federal National Mortgage Association on November 18, 2010. 4 In its October 1, 2010 order, the court also advised plaintiff that he could seek 5 leave to amend the First Amended Complaint. Plaintiff did not do so. However, on October 7, 6 2010, plaintiff filed objections to the undersigned’s October 1, 2010 order, and sought 7 reconsideration of that order by the United States District Judge assigned to this matter. (Dkt. 8 No. 53.) United States District Judge John A. Mendez denied plaintiff’s motion for 9 reconsideration. (Dkt. No. 68.) 10 As noted above, the undersigned heard the Financial Defendants’ motions to 11 dismiss on November 18, 2010. Having concluded that plaintiff’s First Amended Complaint was 12 subject to dismissal prior to the hearing, the undersigned held the hearing only to ascertain 13 whether there was any reason to permit plaintiff to further amend his complaint. In this regard, 14 the undersigned attempted to ask plaintiff several questions about plaintiff’s ability to amend his 15 complaint. However, plaintiff reacted hostilely to the court’s questions and repeatedly declined 16 or refused to answer the court’s questions.11 As stated above, the undersigned submitted the 17 United States’s motion. 18 II. LEGAL STANDARDS 19 A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 20 12(h)(3) challenges the court’s subject matter jurisdiction. Federal district courts are courts of 21 limited jurisdiction that “may not grant relief absent a constitutional or valid statutory grant of 22 jurisdiction,” and “[a] federal court is presumed to lack jurisdiction in a particular case unless the 23 11 24 25 26 On December 8, 2010, plaintiff filed a motion for recusal seeking that the undersigned recuse himself from presiding over this matter. (Dkt. No. 79.) On December 16, 2010, the undersigned entered an order denying plaintiff’s motion for recusal. (Dkt. No. 84.) On January 14, 2011, plaintiff filed a motion for reconsideration of the undersigned’s order denying plaintiff’s motion for recusal. (Dkt. No. 85.) Plaintiff’s motion for reconsideration is pending before Judge Mendez. 10 1 contrary affirmatively appears.” A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) 2 (citations and quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) (“If the court 3 determines at any time that it lacks subject matter jurisdiction, the court must dismiss the 4 action.”). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court 5 takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 6 2004). However, the court is not restricted to the face of the pleadings and “may review any 7 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 8 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 9 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 10 2003) (“A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the 11 pleadings or by presenting extrinsic evidence.”). “When subject matter jurisdiction is challenged 12 under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in 13 order to survive the motion.” Tosco Corp. v. Communities for a Better Env’t., 236 F.3d 495, 499 14 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 15 1181 (2010); see also Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 16 2009) (“In support of a motion to dismiss under Rule 12(b)(1), the moving party may submit 17 ‘affidavits or any other evidence properly before the court . . . . It then becomes necessary for the 18 party opposing the motion to present affidavits or any other evidence necessary to satisfy its 19 burden of establishing that the court, in fact, possesses subject matter jurisdiction.” (citation 20 omitted, modification in original)). 21 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 22 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 23 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard 24 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and 25 plain statement” of plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see 26 also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). “A complaint may survive a 11 1 motion to dismiss if, taking all well-pleaded factual allegations as true, it contains ‘enough facts 2 to state a claim to relief that is plausible on its face.’” Coto Settlement v. Eisenberg, 593 F.3d 3 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). “‘A claim 4 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.’” Caviness v. 6 Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 7 1949). The court accepts all of the facts alleged in the complaint as true and construes them in 8 the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). 9 The court is “not, however, required to accept as true conclusory allegations that are contradicted 10 by documents referred to in the complaint, and [the court does] not necessarily assume the truth 11 of legal conclusions merely because they are cast in the form of factual allegations.” Paulsen, 12 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se 13 pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of 14 deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all 15 possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 16 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court 17 “may generally consider only allegations contained in the pleadings, exhibits attached to the 18 complaint, and matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of 19 Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). 20 “A judgment on the pleadings is properly granted when, taking all the allegations 21 in the non-moving party’s pleadings as true, the moving party is entitled to judgment as a matter 22 of law.” Ventress v. Japan Airlines, 603 F.3d 676, 681 (9th Cir. 2010) (citation and quotation 23 marks omitted). Where a motion for judgment on the pleadings is used to raise the defense of 24 failure to state a claim, the motion “faces the same test as a motion under Rule 12(b)(6).” 25 McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). “When considering a motion 26 for judgment on the pleadings, [the] court may consider facts that are contained in materials of 12 1 which the court may take judicial notice.” Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 2 971, 980 n.18 (9th Cir. 1999) (citation and quotation marks omitted). 3 III. 4 REQUESTS FOR JUDICIAL NOTICE T.D. Service Company requests that the court take judicial notice of three publicly 5 recorded documents: (1) a Deed of Trust recorded on January 16, 2004, as document number 6 2004-0003532-00 in the official records of the El Dorado County Recorder’s Office (“Recorder’s 7 Office”); (2) a Substitution of Trustee recorded on January 15, 2010, as instrument number 2010- 8 0002331-00 in the official records of the Recorder’s Office; and (3) a Trustee’s Deed Upon Sale 9 recorded on August 2, 2010, as instrument number 2010-0034867 in the official records of the 10 Recorder’s Office. (Dkt. No. 22.) The court may take judicial notice of matters of public record, 11 but “may not take judicial notice of a fact that is ‘subject to reasonable dispute.’” Lee v. City of 12 L.A., 250 F.3d 668, 689 (9th Cir. 2001) (citing Fed. R. Evid. 201(b)). Additionally, under the 13 “incorporation by reference” doctrine, a court may also review documents “whose contents are 14 alleged in a complaint and whose authenticity no party questions, but which are not physically 15 attached to the [plaintiff’s] pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) 16 (citation omitted and modification in original). The incorporation by reference doctrine also 17 applies “to situations in which the plaintiff’s claim depends on the contents of a document, the 18 defendant attaches the document to its motion to dismiss, and the parties do not dispute the 19 authenticity of the document, even though the plaintiff does not explicitly allege the contents of 20 that document in the complaint.” Id. Accordingly, the undersigned takes judicial notice of the 21 documents requested by T.D. Service Company, which are matters of public record. 22 Fannie Mae and Fremont Bank request that the court take judicial notice of the 23 following documents: (1) the Grant Deed recorded on January 16, 2004, as document number 24 2004-0003531-00 in the official records of the Recorder’s Office; (2) a Deed of Trust recorded 25 on January 16, 2004, as document number 2004-0003532-00 in the official records of the 26 Recorder’s Office; (3) a Notice of Default and Election to Sell Under Deed of Trust recorded on 13 1 November 13, 2009, as document number 2009-0056712-00 in the official records of the 2 Recorder’s Office; (4) a Notice of Trustee’s Sale recorded on May 27, 2010, as document 3 number 2010-0023410-00 in the Recorder’s Office; (5) an Assignment of Deed of Trust recorded 4 on August 2, 2010, as document number 2010-0034866-00 in the official records of the 5 Recorder’s Office; and (6) the Trustee’s Deed Upon Sale recorded on August 2, 2010, as 6 document number 2010-0034867-00 in the official records of the Recorder’s Office. (Dkt. 7 No. 25, Doc. No. 25-2.) For the reasons stated above as to T.D. Service Company’s request for 8 judicial notice, the undersigned takes judicial notice of these documents, which are matters of 9 public record. 10 On December 9, 2010, plaintiff requested that the court take judicial notice of 11 excerpts of the “Truth In Lending Comptroller’s Handbook July 2010,” which is published by the 12 Office of the Comptroller of the Currency and provides consumers with information about the 13 Truth In Lending Act. (Dkt. No. 81.) The undersigned takes judicial notice of the existence of 14 the excerpts from this public document, but does not take judicial notice of the truth of any of the 15 matters stated therein. 16 IV. DISCUSSION 17 Three motions are pending before the court. The undersigned first addresses the 18 motion to dismiss and motion for judgment on the pleadings filed by the United States, and then 19 addresses the motions to dismiss filed by the Financial Defendants. However, plaintiff’s claims 20 for injunctive relief, cancellation of instruments, and the imposition of a constructive trust are 21 analyzed as to all defendants toward the end of these findings and recommendations. 22 23 A. The United States’s Motions to Dismiss and for Judgment on the Pleadings 1. Plaintiff’s FTCA Claim, Negligence Claims, and Wrongful Foreclosure Claim (Claims 1, 4, 5, and 6) 24 25 26 The United States seeks the dismissal of plaintiff’s FTCA claim, negligence claims, and wrongful foreclosure claim on the grounds that the court lacks subject matter 14 1 jurisdiction over those claims. Specifically, the United States that, in essence, it has not waived 2 its sovereign immunity as to these claims because plaintiff failed to timely present these claims 3 as required by the FTCA and, accordingly, those claims are forever barred as to the United 4 States. 5 To confer subject matter jurisdiction in an action against a sovereign, there must 6 exist (1) “statutory authority vesting a district court with subject matter jurisdiction,” and (2) “a 7 waiver of sovereign immunity.” Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 8 (9th Cir. 2007). Because the United States is a sovereign, it is immune from suit unless it has 9 expressly waived its immunity and consented to be sued. See Dunn & Black, P.S. v. United 10 States, 492 F.3d 1084, 1087-88 (9th Cir. 2007). The United States Supreme Court has 11 “frequently held . . . that a waiver of sovereign immunity is to be strictly construed, in terms of 12 scope, in favor of the sovereign.” Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 13 (1999). Moreover, the waiver cannot be implied, but must be “unequivocally expressed” in the 14 statutory text. Id.; accord Harger v. Dep’t of Labor, 569 F.3d 898, 903 (9th Cir. 2009). The 15 party asserting a waiver of sovereign immunity bears “the burden of establishing that its action 16 falls within an unequivocally expressed waiver of sovereign immunity by Congress. . . .” Dunn 17 & Black, P.S., 492 F.3d at 1088. 18 Relevant to plaintiff’s claims against the United States, the FTCA waives the 19 United States’s sovereign immunity as to tort claims for money damages arising out of negligent 20 or other wrongful acts or omissions of federal government employees acting within the scope of 21 their employment. See 28 U.S.C. §§ 1346(b)(1), 2675(a); see also, e.g., Terbush v. United 22 States, 516 F.3d 1125, 1128 (9th Cir. 2008) (“The FTCA waives the government’s sovereign 23 immunity for tort claims arising out of negligent conduct of government employees acting within 24 the scope of their employment.”). An action against the United States brought pursuant to the 25 FTCA may not be instituted “unless the claimant shall have first presented the claim to the 26 appropriate Federal agency and his claim shall have been finally denied by the agency in writing 15 1 and sent by certified or registered mail.” 28 U.S.C. § 2675(a). “A claim is deemed presented for 2 purposes of § 2675(a) when a party files ‘(1) a written statement sufficiently describing the injury 3 to enable the agency to begin its own investigation, and (2) a sum certain damages claim.’” Blair 4 v. United States, 304 F.3d 861, 864 (9th Cir. 2002) (quoting Warren v. U.S. Dep’t of Interior 5 Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984) (en banc)).12 The FTCA further 6 provides that “[a] tort claim against the United States shall be forever barred unless it is 7 presented in writing to the appropriate Federal agency within two years after such claim accrues 8 or unless action is begun within six months after the date of mailing . . . of notice of final denial 9 of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b); see also, e.g., 10 Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001). “A claim accrues when a plaintiff 11 knows that he has been injured and who has inflicted the injury.”13 Winter, 244 F.3d at 1090. 12 Here, plaintiff’s First Amended Complaint does not allege that plaintiff complied 13 with the FTCA’s claim presentation requirement as to any of his claims against the United States. 14 For this reason alone, plaintiff’s claims against the United States must be dismissed for lack of 15 subject matter jurisdiction. 16 17 Furthermore, plaintiff’s claims against the United States based on the negligent or wrongful acts or omissions of government employees should be dismissed with prejudice 18 19 20 21 22 23 24 25 26 12 A plaintiff’s failure to satisfy the FTCA’s claim presentation requirements deprives the court of subject matter jurisdiction over the claims at issue. As the Ninth Circuit Court of Appeals has remarked, the “claim requirement of section 2675 is jurisdictional in nature and may not be waived.” Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992); see also Alvarado, 509 F.3d at 1019 (“Appellants cannot establish subject matter jurisdiction through the FTCA because they have not administratively exhausted their claims.”); Blair, 304 F.3d at 863-64 (“Under the claim presentation rule, a district court cannot exercise subject matter jurisdiction over an action brought pursuant to the FTCA unless the plaintiff ‘shall have first presented the claim to the appropriate Federal agency. . . .’” (citing 28 U.S.C. § 2675(a); modification in original)). 13 In Winter, the Court of Appeals further stated: “Accrual of a claim does not ‘await awareness by a plaintiff that his injury has been negligently inflicted.’ As we have pointed out, ‘It is well settled that the limitations period begins to run when the plaintiff has knowledge of injury and its cause, and not when the plaintiff has knowledge of legal fault.’” 244 F.3d at 1090 (citations omitted). 16 1 because plaintiff has not met his burden to show that he adequately presented his claims to the 2 United States, and nothing in plaintiff’s submissions to the court suggests that plaintiff could 3 amend his First Amended Complaint to cure the defects therein. First, as to plaintiff’s express 4 FTCA claim, which alleges negligence and wrongful acts on the part of government employees 5 in connection with the termination of plaintiff’s employment, plaintiff alleges that he was 6 removed from his position as an Air Traffic Control Specialist on February 22, 2003. (First Am. 7 Compl. ¶ 6.) Plaintiff’s opposition brief and an exhibit attached to plaintiff’s declaration in 8 support thereof reflect that plaintiff was terminated from employment on September 3, 2004. 9 (Pl.’s Opp’n to United States’s Mot. to Dismiss at 6, 8; Bridgeman Decl. at 14 (termination letter 10 stating that termination was effective September 3, 2004).) Thus, plaintiff was obligated to 11 properly present his FTCA claim related to his employment by September 3, 2006. He did not 12 do so and, accordingly plaintiff’s first claim is forever barred. 13 Plaintiff counters in his written opposition that he filed formal and informal 14 grievances in September of 2004 to dispute the personnel action taken against him, i.e., removal 15 from duty and termination for failure to maintain a medical clearance, all of which were either 16 expressly denied or should be deemed denied for lack of a response. (See Pl.’s Opp’n to United 17 States’s Mot. to Dismiss at 15-17, 20; Bridgeman Decl. at 18, 20, 21.) Even assuming that 18 plaintiff intended that these formal and informal grievances serve as the means by which plaintiff 19 timely presented his tort claims under the FTCA, those grievances are legally inadequate. None 20 of the grievances states “a sum certain damages claim” with respect to plaintiff’s claims, which is 21 required to exhaust claims of tortious or wrongful conduct under the FTCA. See, e.g., Blair, 304 22 F.3d at 864. Thus, plaintiff’s argument with respect to the grievances fails. Additionally, 23 plaintiff’s grievances do not seek money damages; they only seek reinstatement of plaintiff’s 24 medical clearance and return to job. To the extent plaintiff’s tort claims seek injunctive relief in 25 the form of reinstatement, such relief is barred because the only relief provided for in the FTCA 26 is money damages. See Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir. 1992); 17 1 2 Palm v. United States, 835 F. Supp. 512, 518 (N.D. Cal. 1993). Plaintiff’s claims covered by the FTCA fail for the additional reason that they are 3 preempted by the Civil Service Reform Act (“CSRA”), which is codified in various sections of 4 Title 5 of the United States Code. Plaintiff contends that insofar as his employment was 5 concerned, he was covered and subject to the provisions of the Civil Service Reform Act, and 6 that he exhausted his remedies consistent with that act and the applicable collective bargaining 7 agreement. (See Pl.’s Opp’n to United States’s Mot. to Dismiss at 12-16.) “The CSRA limits 8 federal employees challenging their supervisors’ ‘prohibited personnel practices’ to an 9 administrative remedial system.” Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005). Thus, 10 assuming the truth of plaintiff’s representation that he is covered by the CSRA, if plaintiff’s 11 termination constitutes a “prohibited personnel action” under the CSRA, his claims related to the 12 termination of his employment are barred because the CRSA provides the exclusive means by 13 which plaintiff can challenge personnel actions. See id. (“If the conduct that [Mahtesian] 14 challenge[s] in this action falls within the scope of the CSRA’s ‘prohibited personnel practices,’ 15 then the CSRA’s administrative procedures are his only remedy, and the federal courts cannot 16 resolve Appellants’ claims under . . . the FTCA.”) (modifications in original) (quoting Orsay v. 17 U.S. Dep’t of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002)). The Ninth Circuit Court of Appeals 18 has held that alleged unlawful termination constitutes a “prohibited personnel action” under the 19 CSRA. Manango v. United States, 529 F.3d 1243, 1247 (9th Cir. 2008) (holding that appellant’s 20 “claim that he was unfairly terminated falls squarely within the definition of a personnel action as 21 a ‘significant change in duties, responsibilities or working conditions’ under the CSRA”) (citing 22 5 U.S.C. § 2302(a)(2)(A)(xi)). Accordingly, plaintiff’s FTCA claims are preempted by the 23 CSRA, and must be dismissed with prejudice for this additional reason. 24 Plaintiff’s negligence per se claims and wrongful foreclosure claim should 25 similarly be dismissed with prejudice. For similar reasons as those stated above, plaintiff has not 26 presented these claims to the United States as required by the FTCA. Nothing in plaintiff’s 18 1 operative compliant or other papers filed with the court suggests that plaintiff could cure the 2 deficiencies in regards to the FTCA presentation requirements. 3 2. Plaintiff’s Quiet Title Act Claim (Claim 2) 4 Plaintiff’s quiet title claim seeks to quiet title to the subject property in plaintiff’s 5 name pursuant to 28 U.S.C. § 2409a, which authorizes the naming of the United States as a 6 defendant in a civil action to quiet title to real property in which the United States claims an 7 interest. The United States has moved to dismiss on the grounds that it does not claim an interest 8 in the property at issue here. Plaintiff alleges that the United States claims an interest by virtue 9 of the fact that defendant Federal National Mortgage Association, or “Fannie Mae,” “is the owner 10 of the loan on the property” and “is a potential party to become an owner of the property” after 11 the “foreclosure sale.” (See First Am. Compl. ¶¶ 19-20.) Plaintiff alleges elsewhere that the 12 trustee’s sale has already occurred. (Id. ¶ 36.) 13 In relevant part, the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, provides: “The 14 United States may be named as a party defendant in a civil action under this section to adjudicate 15 a disputed title to real property in which the United States claims an interest, other than a security 16 interest or water rights.” 28 U.S.C. § 2409a(a). The QTA waives the United States’s sovereign 17 immunity in actions to quiet title. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). 18 The Ninth Circuit Court of Appeals has held that “[f]or a court to exercise jurisdiction under the 19 QTA, ‘(1) the United States must claim an interest in the property at issue, and (2) there must be 20 a disputed title to real property.’” Id. at 686 (quoting Leisnoi, Inc. v. United States, 170 F.3d 21 1188, 1191 (9th Cir. 1999)). 22 The first element of the jurisdictional test is at issue here, and plaintiff alleges that 23 the United States claims an interest in the subject property because Fannie Mae allegedly claims 24 an interest in the now-defaulted loan and/or the property. The undersigned concludes that the 25 United States does not claim an interest in the subject property because Fannie Mae is not a 26 federal agency. As provided in 12 U.S.C. § 1716b, what was previously referred to as the 19 1 Federal National Mortgage Association was partitioned into two entities. One corporation, 2 Fannie Mae, retained the name Federal National Mortgage Association and was designated as a 3 “Government-sponsored private corporation.” Id. The other corporation, known as the 4 Government National Mortgage Association, was designated to remain “in the Government.” Id. 5 One judge of this court recently stated, citing Section 1716b, that “Fannie Mae is a private, 6 for-profit entity.” See Hookano v. Wash. Mut. Bank, Inc., No. CIV. S-08-751 LKK/JFM, 2010 7 WL 4623956, at *2 (E.D. Cal. Nov. 4, 2010) (unpublished) (stating also that Fannie Mae is “a 8 private shareholder-owned company, and its common stock is publicly traded on the New York 9 Stock Exchange). The undersigned agrees that, by statute, Fannie Mae is not a federal agency. 10 Accordingly, the United States does not claim an interest in the subject property. 11 In his opposition brief, plaintiff makes two arguments in an effort to demonstrate 12 that the United States has claimed an interest to the subject property by virtue of Fannie Mae’s 13 interest. First, plaintiff relies on a federal regulation that provides that the Secretary of the 14 Department of Housing and Urban Development (“HUD”) has general regulatory power over 15 Fannie Mae. (Pl.’s Opp’n to United States’s Mot. to Dismiss at 22 (citing 24 C.F.R. § 81.1(a)).) 16 Second, plaintiff argues that Fannie Mae is, in essence, a federal agency because the Federal 17 Housing Finance Agency (“FHFA”) became the conservator of Fannie Mae in 2008. (Pl.’s 18 Opp’n to United States’s Mot. to Dismiss at 23-25.) The undersigned is not persuaded by 19 plaintiff’s arguments. However, even assuming that the United States could be found to claim an 20 interest here, plaintiff’s quiet title claim would fail because it is contingent on his other claims 21 for relief which have been found to be subject to dismissal. See, cf., Juarez v. Wells Fargo Bank, 22 N.A., No. CV 09-3104 AHM (AGRx), 2009 WL 3806325, at *2 (C.D. Cal. Nov. 11, 2009) 23 (dismissing plaintiff’s quiet title claim with prejudice because that claim was dependent on 24 plaintiff’s right to rescind the contract and that right to rescind was time-barred). Accordingly, 25 the undesigned will recommend the dismissal of plaintiff’s QTA claim with prejudice. 26 //// 20 1 B. 2 The Financial Defendants’ Motions to Dismiss Before turning to the Financial Defendants’ motions to dismiss, the undersigned 3 addresses two issues that impact several of the claims against the Financial Defendants. First, the 4 undersigned clarifies that because, as explained above, the United States does not claim an 5 interest in the property at issue, 28 U.S.C. § 2409a does not govern plaintiff’s quiet title claim. 6 Thus, California law, and not federal law guides the court’s discussion of plaintiff’s quiet title 7 claim. 8 Second, the undersigned concludes that to the extent that plaintiff is claiming any 9 alleged procedural irregularities in the foreclosure of the property and trustee’s sale in support of 10 claims seeking to set aside that sale and quiet title in plaintiff, such claims fail because plaintiff 11 has not alleged a tender of the entire indebtedness. “Under California law, in an action to set 12 aside a trustee’s sale, a plaintiff must demonstrate that he has made a valid and viable tender 13 [offer] of payment of the indebtedness.” Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 14 2d 1177, 1183-84 (N.D. Cal. 2009) (citations and quotation marks omitted); see also Alcaraz v. 15 Wachovia Mortgage FSB, 592 F. Supp. 2d 1296, 1304 (E.D. Cal. 2009) (“‘A valid and viable 16 tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale 17 under a deed of trust.’”) (citing Karlsen v. Am. Sav. & Loan Ass’n, 15 Cal. App. 3d 112, 92 Cal. 18 Rptr. 851 (Ct. App. 1971)). A tender must be one of full performance and must also be 19 unconditional. Arnolds Mgmt. Corp. v. Eischen, 158 Cal. App. 3d 575, 580, 205 Cal. Rptr. 15, 20 18 (Ct. App. 1984). The California Court of Appeal has held that the tender rule applies in an 21 action to set aside a trustee’s sale for irregularities in the sale notice or procedure and has stated 22 that “[t]he rationale behind the rule is that if plaintiffs could not have redeemed the property had 23 the sale procedures been proper, any irregularities in the sale did not result in damages to the 24 plaintiffs.” FPCI RE-HAB 01 v. E & G Invs., Ltd., 207 Cal. App. 3d 1018, 1021, 255 Cal. Rptr. 25 157, 160 (Ct. App. 1989). Furthermore, a party must allege full tender “in order to maintain any 26 cause of action for irregularity in the sale procedure.” Abdallah v. United Savs. Bank, 43 Cal. 21 1 App. 4th 1101, 1109, 51 Cal. Rptr. 2d 286, 292 (Ct. App. 1996); see also Arnolds Mgmt. Corp., 2 158 Cal. App. 3d at 579, 205 Cal. Rptr. at 18 (“A cause of action ‘implicitly integrated’ with the 3 irregular sale fails unless the trustor can allege and establish a valid tender.” (citation omitted)). 4 This rule also generally applies to a claim to cancel a voidable sale under a deed of trust. See 5 Karlsen, 15 Cal. App. 3d at 117, 92 Cal. Rptr. at 854 (“A valid and viable tender of payment of 6 the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.”). 7 Here, plaintiff has not alleged that he has tendered the full amount of the 8 indebtedness.14 Accordingly, plaintiff’s claims including his quiet title, negligence, wrongful 9 foreclosure, and cancellation claims fail to the extent they rely on procedural irregularities in the 10 foreclosure and trustees’ sale of the property. See, e.g., Ngoc Nguyen v. Wells Fargo Bank, 11 N.A., ___ F.Supp.2d ___, No. C-10-4081-EDL, 2010 WL 4348127, at *11-12 (N.D. Cal. Oct. 12 27, 2010) (dismissing wrongful foreclosure and quiet title claims for failure to tender); accord 13 Garcia v. Wachovia Mortgage Corp., 676 F. Supp. 2d 895, 914 (C.D. Cal. 2009) (“In order to 14 allege a claim to quiet title, Plaintiff must allege ability to tender the amounts admittedly 15 borrowed.”). The undersigned addresses additional grounds for dismissal below. 16 1. 17 T.D. Service Company’s Motion to Dismiss a. 18 Quiet Title Claim T.D. Service Company moves to dismiss plaintiff’s quiet title claim on the 19 grounds that T.D. Service Company, which acted as the foreclosure trustee with respect to a 20 trustee’s sale that has already occurred, does not claim any interest in the property at issue and, 21 accordingly, is not a proper party insofar as the quiet title claim is concerned. California Code of 22 Civil Procedure § 762.010 provides that the “plaintiff shall name as defendants in the action the 23 persons having adverse claims to the title of the plaintiff against which a determination is 24 14 25 26 Plaintiff’s opposition brief states that he alleged a proper tender in his First Amended Complaint. (Pl.’s Opp’n to Fin. Defs.’ Mots. to Dismiss at 19, Dkt. No. 58.) This assertion is not supported by the allegations in the First Amended Complaint, and plaintiff repeatedly refused to answer the undersigned’s questions regarding the tender issue at the November 18, 2010 hearing. 22 1 sought.” Under the facts of this case, the argument of T.D. Service Company, which claims no 2 interest of any type in the property, is well-taken. Accordingly, plaintiff’s quiet title claim should 3 be dismissed.15 4 b. 5 Negligence Per Se Claims Next, T.D. Service Company argues that plaintiff’s negligence claims should be 6 dismissed because it does not owe a duty to plaintiff beyond the statutory duties provided in 7 California Civil Code §§ 2924 et seq.16 Generally, “[t]o prevail on [a] negligence claim, 8 plaintiffs must show that [the defendant] owed them a legal duty, that it breached the duty, and 9 that the breach was a proximate or legal cause of their injuries.” Merrill v. Navegar, Inc., 26 Cal. 10 4th 465, 477, 28 P.3d 116, 123 (Cal. 2001). There is no such thing as an independent claim for 11 “negligence per se,” and this theory does not confer a private action where a statute does not 12 otherwise provide for one. See, e.g., Basham v. Pac. Funding Group, No. 2:10-cv-96 WBS 13 GGH, 2010 WL 2902368, at *2 (E.D. Cal. July 22, 2010) (unpublished) (“The negligence per se 14 doctrine does not establish a cause of action distinct from negligence.”). Instead, negligence per 15 se is an evidentiary doctrine, codified at California Evidence Code § 669, which creates a 16 presumption that a defendant’s conduct fell below the applicable standard of care, i.e., a 17 presumption of a breach, “if four elements are established: (1) the defendant violated a statute, 18 ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to 19 person or property; (3) the death or injury resulted from an occurrence the nature of which the 20 statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death 21 or the injury to his person or property was one of the class of persons for whose protection the 22 15 23 24 25 26 Plaintiff has not alleged in his First Amended Complaint that T.D. Service Company has an unknown, uncertain, or contingent interest in the property, which might support naming T.D. Service Company as a defendant under certain circumstances. See Cal. Civ. Proc Code § 762.020(b). 16 The existence of a legal duty on the part of the defendant is a question of law to be determined by the court. Kentucky Fried Chicken of Cal., Inc. v. Superior Court, 14 Cal. 4th 814, 819, 927 P.2d 1260 (Cal. 1997). 23 1 statute, ordinance, or regulation was adopted.” Quiroz v. Seventh Avenue Ctr., 140 Cal. App. 2 4th 1256, 1285, 45 Cal. Rptr. 3d 222, 244 (Ct. App. 2006); accord Millard v. Biosources, Inc., 3 156 Cal. App. 4th 1338, 1353, 68 Cal. Rptr. 3d 177, 187-88 (Ct. App. 2007). 4 Here, T.D. Service Company’s argument that it owes plaintiff no duty beyond its 5 duties contained in California Civil Code §§ 2924 et seq. is supported by California case law. 6 See I.E. Assocs. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 288, 702 P.2d 596, 600 (Cal. 1985) (“In 7 short, there is no authority for the proposition that a trustee under a deed of trust owes any duties 8 with respect to exercise of the power of sale beyond those specified in the deed and the 9 statutes.”); Banc of Am. Leasing & Capital, LLC v. 3 Arch Trustee Servs., Inc., 180 Cal. App. 10 4th 1090, 1097, 103 Cal. Rptr. 3d 397, 401 (Ct. App. 2009) (“The rights and powers of trustees 11 in nonjudicial foreclosure proceedings are strictly limited and defined by the contract of the 12 parties and the statutes” (citation and quotation marks omitted).). Plaintiff’s First Amended 13 Complaint does not contain allegations sufficient to state a plausible claim that T.D. Service Co. 14 violated those limited duties. At most, plaintiff cursorily alleges that T.D. Service Company 15 violated California Civil Code § 2924l, which permits a trustee to file a declaration of 16 nonmonetary status,17 and derivatively violated California Business and Professions Code 17 § 17200. (First Am. Compl. ¶ 41.) However, plaintiff has not identified a duty imposed on T.D. 18 Service Company in Section 2924l that would give rise to liability for negligence under a 19 20 21 17 22 23 24 25 26 As a judge of this court recently explained, California Civil Code Section 2924l provides that “where ‘trustee under a deed of trust [who] is named in an action or proceeding in which the deed of trust is the subject, and in the event that the trustee maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee’ it may file a declaration of nonmonetary status. If unopposed, ‘the trustee shall not be required to participate any further in the action or proceedings, shall not be subject to any monetary awards as and for damages, attorneys’ fees or costs, shall be required to respond to any discovery requests as a nonparty, and shall be bound by any court order relating to the subject deed of trust that is subject to the action or proceeding.’” Tran v. Wash. Mut. Bank, No. CIV. S-09-3277 LKK/DAD, 2010 WL 520878, at *1 (E.D. Cal. Feb. 11, 2010) (unpublished) (citations omitted, modification in original). 24 1 negligence per se theory.18 2 Moreover, plaintiff’s argument that T.D. Service Company owes a broader 3 fiduciary duty to him fails. See Kachlon v. Markowitz, 168 Cal. App. 4th 316, 335, 85 Cal. Rptr. 4 3d 532, 546 (Ct. App. 2008) (“The trustee in nonjudicial foreclosure is not a true trustee with 5 fiduciary duties, but rather a common agent for the trustor and beneficiary. The scope and nature 6 of the trustee’s duties are exclusively defined by the deed of trust and the governing statutes. No 7 other common law duties exist.”) (citation omitted); accord Saldate v. Wilshire Credit Corp., 686 8 F. Supp. 2d 1051, 1061-62 (E.D. Cal. 2010). Accordingly, plaintiff’s negligence claims should 9 be dismissed against T.D. Service Company.19 10 c. 11 Wrongful Foreclosure Claim In response to plaintiff’s alleged wrongful foreclosure claim, T.D. Service 12 Company seeks dismissal on the grounds that: (1) plaintiff has not alleged any specific 13 wrongdoing on T.D. Service Company’s part; (2) the allegations pertaining to the claim of 14 wrongful foreclosure are redundant of the other allegations in the complaint; and (3) T.D. Service 15 Company is immune from liability under California Civil Code § 2924(d). Plaintiff has not 16 alleged any specific acts supporting T.D. Service Company’s liability for wrongful foreclosure. 17 His First Amended Complaint reflects that T.D. Service Company acted as a trustee in 18 connection with the non-judicial foreclosure and trustee’s sale, but does not allege facts regarding 19 the basis for T.D. Service Company’s liability for wrongful foreclosure. Accordingly, without 20 more, plaintiff’s claim appears to be redundant of his other claims, and plaintiff has failed to state 21 22 23 24 25 26 18 Indeed, it is not certain that Section 2924l is a substantive rule that applies in federal court. See Tran, 2010 WL 520878, at *1 (concluding that Section 2924l is a state procedural rule and thus “nonmonetary status may not be granted in federal court”). 19 Additionally, as to plaintiff’s fifth claim for relief, alleging various violations of statutes, plaintiff does not allege any negligent conduct on the part of T.D. Service Company in his First Amended Complaint. 25 1 a claim against T.D. Service Company in regards to the claim for wrongful foreclosure.20 The 2 court need not reach T.D. Service Company’s other arguments. 3 2. Federal National Mortgage Association and Fremont Bank’s Motion to Dismiss 4 5 a. 6 Quiet Title Claim Plaintiff’s quiet title claim is premised on an allegation that Fremont Bank offered 7 plaintiff and his wife “a United States Government Home Affordable Program (HAMP) home 8 loan modification at the beginning of 2010,” but that plaintiff and his wife could not afford the 9 modification. Federal National Mortgage Association and Fremont Bank move to dismiss 10 plaintiff’s quiet title claim as to them on the grounds that they are not liable for plaintiff’s 11 inability to afford the loan modification offered and, in any event, owed no duty to offer a loan 12 modification to plaintiff. 13 As an initial matter, plaintiff alleges that he was actually offered a loan 14 modification, but simply could not afford it. Plaintiff has not provided any authority in his 15 opposition for the proposition that plaintiff was entitled to a loan modification that he could 16 afford and that a failure to provide an affordable loan modification supports the quieting of title 17 in plaintiff. Moreover, insofar as the HAMP program is concerned, district courts have 18 persuasively concluded that lenders are not required to make loan modifications for borrowers 19 who qualify under HAMP and that there is no private right of action to enforce obligations under 20 HAMP that exist between a loan servicer and the government. See Wilson v. GMAC Mortgage 21 LLC, 10CV2559 DMS (NLS), 2010 WL 5387829, at *1 (S.D. Cal. Dec. 22, 2010) (unpublished) 22 (“HAMP generally involves an agreement between a participating loan servicer and the U.S. 23 Department of Treasury and a borrower does not have a private right to enforce the HAMP 24 25 26 20 At most, plaintiff’s opposition brief alleges that T.D. Service Company proposed a settlement agreement to plaintiff, which plaintiff rejected. It is not clear how this alleged offer of settlement gives rise to liability for wrongful foreclosure. 26 1 contract.”); Ingalsbe v. Bank of Am., N.A., No. 1:10-cv-01665-OWW-SMS, 2010 WL 5279839, 2 at *5 (E.D. Cal. Dec. 13, 2010) (unpublished) (collecting cases and stating that the “consensus 3 among district courts in the Ninth Circuit is that there is no private right of action under 4 HAMP”); Hernandez v. HomeEq Servicing, No. 1:10cv01484 OWW DLB, 2010 WL 5059673, 5 at *2-3 (E.D. Cal. Dec. 6, 2010) (unpublished) (concluding that HAMP provides incentives to 6 modify loans but does not require such modifications, and that there is no private right of action 7 to enforce HAMP); Hoffman v. Bank of Am., No. C 10-2171 SI, 2010 WL 2635773, at *5 (N.D. 8 Cal. June 30, 2010) (unpublished) (concluding that “lenders are not required to make loan 9 modifications for borrowers that qualify under HAMP nor does the servicer’s agreement confer 10 an enforceable right on the borrower”); Marks v. Bank of Am., No. 03:10-cv-08039-PHX-JAT, 11 2010 WL 2572988, at *5-7 (D. Ariz. June 22, 2010) (unpublished) (discussing the history of 12 HAMP and concluding that no express or implied private right of action exists to enforce HAMP 13 obligations). Accordingly, plaintiff’s quiet title claim should be dismissed.21 14 b. 15 Negligence Per Se Claims Fremont Bank and Federal National Mortgage Association argue that plaintiff’s 16 First Amended Complaint fails to state a claim for negligence based on statutory violations. The 17 undersigned agrees. 18 First, the undersigned agrees with Fremont Bank and Federal National Mortgage 19 Association’s assertion that “as a general rule, a financial institution owes no duty of care to a 20 borrower when the institution’s involvement in the loan transaction does not exceed the scope of 21 its conventional role as a mere lender of money.” Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 22 Cal. App. 3d 1089, 283 Cal. Rptr. 53, 56 (Ct. App. 1991); see also Wagner v. Benson, 101 Cal. 23 21 24 25 26 Fannie Mae and Fremont Bank argue that they had no obligation to offer plaintiff a loan modification under California Civil Code § 2923.6. However, plaintiff does not make such an argument. In any event, to the extent that plaintiff argues that he as entitled to a loan modification pursuant to California Civil Code § 2923.6, such an argument fails because that statutory section does not place a duty on Fannie Mae or Fremont Bank to offer plaintiff a loan modification. See, e.g., Pantoja, 640 F. Supp. 2d at 1187-88. 27 1 App. 3d 27, 35, 161 Cal. Rptr. 516 (Ct. App. 1980) (“Liability to a borrower for negligence arises 2 only when the lender ‘actively participates’ in the financed enterprise ‘beyond the domain of the 3 usual money lender’” (citation omitted).). Plaintiff has not alleged anything more than an arms- 4 length relationship between himself and Fremont Bank and Federal National Mortgage 5 Association insofar as his loan is concerned, and as a result, plaintiff’s claim in his opposition 6 that these defendants owed plaintiff a general fiduciary duty is not well-taken. 7 Second, the undersigned concludes that plaintiff failed to allege facts identifying 8 the specific breach of a specific duty imposed on Fremont Bank and Federal National Mortgage 9 Association by the National Housing Act, or the Federal Housing Enterprise Financial Safety and 10 Soundness Act. (See First Am. Compl. ¶ 47.) Fremont Bank and Federal National Mortgage 11 Association should not be left to guess about the nature of the statutory duties purportedly owed 12 and violated by them in regards to plaintiff.22 Without more, plaintiff’s negligence per se claims 13 that rely on these statutes fail. 14 Plaintiff’s First Amended Complaint appears to allege that either Fremont Bank 15 and Federal National Mortgage Association failed to respond to a qualified written request 16 submitted by plaintiff, in violation of a provision of RESPA, 12 U.S.C. § 1205. (See First Am. 17 Compl. ¶ 47.) Plaintiff’s allegations are general and do not specify which provision of Section 18 1205 either Fremont Bank and Federal National Mortgage Association allegedly violated. In 19 regards to a qualified written request for information (“QWR”), 12 U.S.C. § 1205(e)(1) provides: 20 (e) Duty of loan servicer to respond to borrower inquiries 21 (1) Notice of receipt of inquiry 22 23 22 24 25 26 Moreover, in the context of plaintiff’s negligence per se claim, plaintiff alleges that Fremont Bank and Federal National Mortgage Association engaged in fraud. (First Am. Compl. ¶ 47.) However, plaintiff’s fraud allegations are vague and conclusory and do not meet the specificity requirements attendant to claims of fraud under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”) 28 1 (A) In general 2 If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period. 3 4 5 (B) Qualified written request 6 For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that– 7 8 (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and 9 10 11 (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 Plaintiff’s First Amended Complaint does not allege whether and when plaintiff 13 actually sent a QWR to either Federal National Mortgage Association or Fremont Bank, whether 14 the QWR met the requirements of the statute, and what plaintiff sought through the QWR. 15 Without more, plaintiff’s negligence claim should be dismissed to the extent it is premised on 16 RESPA.23 See, e.g., Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW (FFMx), 17 2011 WL 97684, at *4 (C.D. Cal. Jan. 11, 2011) (unpublished) (dismissing plaintiff’s RESPA 18 claim because plaintiff’s complaint failed to allege that his request constituted a QWR under 19 20 21 22 23 24 25 26 23 Plaintiff’s opposition brief, which does not constitute part of the First Amended Complaint, discusses a request for appraisal documents allegedly sent to Fremont Bank. (Pl.’s Opp’n to Fin. Defs.’ Mot. to Dismiss at 17-18.) It is unclear whether this alleged request—which is not identified in the First Amended Complaint—serves as the basis for plaintiff’s RESPA claim. Assuming it is, plaintiff’s claim fails because plaintiff’s First Amended Complaint does not allege actual pecuniary harm in support of actual damages under RESPA and does not allege a pattern or practice of non-compliance with RESPA in support of statutory damages. See Lal v. Am. Home Servicing, Inc., 680 F. Supp. 2d 1218, 1223 (E.D. Cal. 2010) (dismissing RESPA claim where plaintiff’s complaint did not allege pecuniary damages in support of a claim for actual damages and did not allege a pattern or practice of non-compliance with RESPA in support of a claim for statutory damages); Allen v. United Fin. Mortgage Corp., 66 F. Supp. 2d 1089, 1097 (N.D. Cal. 2009) (concluding that failure to plead pecuniary loss attributable to the violation of RESPA was fatal to the claim). 29 1 2 Section 2605(e)(1)(B)). Plaintiff’s First Amended Complaint fails to allege sufficient facts establishing a 3 statutory duty on the part of Fremont Bank and Federal National Mortgage Association, and a 4 violation thereof, in regards to the TILA statute. (See First Am. Compl. ¶ 47.) However, 5 although factual allegations in an opposition to a motion to dismiss are not to be considered in 6 evaluating the motion to dismiss, plaintiff’s opposition alleges a violation of 12 C.F.R. 7 § 226.4(d)(1)(i), a regulation under the TILA statute. (See Pl.’s Opp’n to Fin. Defs.’ Mots. to 8 Dismiss at 18.) Plaintiff contends that in connection with this regulation, “information regarding 9 Credit Life, Accident, Health, or Loss of Income Insurance” was not disclosed to him. (Id.) 10 Section 226.4(d)(1)(i) provides: 11 (d) Insurance and debt cancellation and debt suspension coverage. 12 (1) Voluntary credit insurance premiums. Premiums for credit life, accident, health, or loss-of-income insurance may be excluded from the finance charge if the following conditions are met: 13 14 (i) The insurance coverage is not required by the creditor, and this fact is disclosed in writing. 15 16 17 18 (ii) The premium for the initial term of insurance coverage is disclosed in writing. If the term of insurance is less than the term of the transaction, the term of insurance also shall be disclosed. The premium may be disclosed on a unit-cost basis only in open-end credit transactions, closed-end credit transactions by mail or telephone under § 226.17(g), and certain closed-end credit transactions involving an insurance plan that limits the total amount of indebtedness subject to coverage. 19 20 21 (iii) The consumer signs or initials an affirmative written request for the insurance after receiving the disclosures specified in this paragraph, except as provided in paragraph (d)(4) of this section. Any consumer in the transaction may sign or initial the request. 22 12 C.F.R. § 226.4(d)(1)(i)-(iii). Initially, it is unclear from the First Amended Complaint and 23 plaintiff’s opposition how this regulation applies here. Moreover, plaintiff has not alleged that 24 the premiums for the types of insurances identified in the regulation were excluded from the 25 finance charge in relation to his loan, which is a condition required for the disclosures identified 26 in Section 226.4(d)(1)(i). Thus, plaintiff has not sufficiently alleged that either Fremont Bank 30 1 and Federal National Mortgage Association had a duty to disclose the information provided for in 2 the regulation and, accordingly, plaintiff’s negligence claim fails as to this specific alleged TILA 3 violation. 4 5 For the reasons stated above, plaintiff’s negligence per se claims should be dismissed for failure to state a claim. 6 c. 7 Wrongful Foreclosure Claim As is the case with respect to T.D. Service Company, the success of plaintiff’s 8 wrongful foreclosure claim is contingent on the success of his other claims. Because plaintiff has 9 not successfully pled a plausible claim in any other respect, and failed to allege a tender of the 10 11 entire indebtedness, his wrongful foreclosure claim fails. C. Plaintiff’s Claims For Injunctive Relief, Cancellation, and A Constructive Trust As To All Defendants (Claims 3, 7 and 8) 12 13 1. Injunctive Relief 14 Plaintiff’s claim for injunctive relief seeks to enjoin the trustee’s sale of his 15 foreclosed property, which is alleged to have taken place on July 13, 2010. It appears that this 16 claim is a hold-over claim from plaintiff’s original complaint, which was filed prior to the 17 trustee’s sale. (See Compl., June 14, 2010, Dkt. No. 1.) The undersigned recommends dismissal 18 of this claim because: (1) injunctive relief is a remedy, not an independent claim, and 19 (2) plaintiff’s request for the particular injunction sought is moot. 20 As an initial matter, injunctive relief is a remedy that derives from the underlying 21 claims, not an independent claim. See, e.g., Lane v. Vitek Real Estate Indus. Group, 713 F. 22 Supp. 2d 1092, 1104 (E.D. Cal. 2010); Hafiz v. Greenpoint Mortgage Funding, Inc., 652 F. Supp. 23 2d 1039, 1049 (N.D. Cal. 2009); Schimsky v. U.S. Ofc. of Personnel Mgmt., 587 F. Supp. 2d 24 1161, 1168 (S.D. Cal. 2008); Cox Comm’n PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d 25 1272, 1283 (S.D. Cal. 2002); accord Marlin v. Aimco Venezia, LLC, 154 Cal. App. 4th 154, 162, 26 64 Cal. Rptr. 3d 488, 494-95 (Ct. App. 2007). For this reason alone, the court recommends 31 1 dismissal of plaintiff’s “claim” for injunctive relief. 2 In any event, plaintiff’s “claim” seeking to enjoin an act that has already been 3 completed is moot. The trustee’s sale occurred on July 13, 2010. The court cannot prevent the 4 trustee’s sale from occurring because it has already occurred. Accordingly, the undersigned 5 recommends that plaintiff’s claim for injunctive relief be dismissed with prejudice.24 6 2. Cancellation of Instruments 7 Plaintiff’s seventh claim seeks cancellation of “any instruments that result in a 8 termination of ownership as a product of the foreclosure and July 13, 2010, trustee’s sale.”25 9 (First Am. Compl. ¶ 60.) Plaintiff’s request for cancellation is premised on the other acts or 10 omissions alleged elsewhere in plaintiff’s First Amended Complaint. (See id. ¶ 61 (“Because of 11 the misconduct and/or violations, as stated herein . . ., any instruments depriving plaintiff and his 12 wife of their ownership in the subject property should be void and cancelled.”).) Plaintiff does 13 not expressly identify which instruments are the subject of this claim. 14 The undersigned recommends the dismissal of plaintiff’s claim for cancellation as 15 to all defendants. First, district courts have concluded that cancellation of an instrument such as 16 a deed is an equitable remedy and not an independent basis for liability. See, e.g., Gwin v. Pac. 17 Coast Fin. Servs., No. 09cv2734 BTM (BLM), 2010 WL 1691567, at *4 (S.D. Cal. Apr. 23, 18 2010) (unpublished) (“Cancellation is an equitable remedy.”); Qureshi v. Countrywide Home 19 Loans, Inc., No. C 09-4198 SBA, 2010 WL 841669, at *7 (N.D. Cal. Mar. 10, 2010) 20 (unpublished) (“A request to cancel a trustee’s deed is a request for a remedy as opposed to an 21 22 23 24 Plaintiff also seeks injunctive relief in his “prayer” section that essentially seeks to set aside the trustee’s sale and/or prevent any eviction of plaintiff and his wife from the property. (See First Am. Compl. at 16.) That requested relief is plainly dependent on plaintiff’s remaining claims. Accordingly, such relief rises or falls with plaintiff’s remaining claims. 24 25 25 26 California Civil Code § 3412 provides: “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” 32 1 independent cause of action.”) (citing Porter v. Superior Court, 73 Cal. App. 3d 793, 799, 141 2 Cal. Rptr. 59 (Ct. App. 1977)); Yazdanpanah v. Sacramento Valley Mortgage Group, No. C 3 09-02024 SBA, 2009 WL 4573381, at *6 (N.D. Cal. Dec. 1, 2009) (unpublished) (“A request to 4 cancel the trustee’s deed is ‘dependent upon a substantive basis for liability, [and it has] no 5 separate viability.’”) (modification in original) (quoting Glue-Fold, Inc. v. Slautterback Corp., 82 6 Cal. App. 4th 1018, 1023 n.3, 98 Cal. Rptr. 2d 661, 663 n.3 (Ct. App. 2000)). Moreover, 7 plaintiff has pled his claim for cancellation in a manner such that the success of his cancellation 8 claim is entirely contingent on the success of his other claims. Thus, because the undersigned 9 has concluded that plaintiff’s other claims for relief should be dismissed, plaintiff’s claim for 10 cancellation should be dismissed as well.26 See Sanchez v. U.S. Bank, N.A., No. C 09-04506 SI, 11 2010 WL 670632, at *5 (N.D. Cal. Feb. 22, 2010) (unpublished) (dismissing plaintiff’s claim for 12 cancellation where allegations in support of that claim were the same allegations related to the 13 claims that the court had determined failed to state a claim); accord Razawi v. FDIC, No. 14 2:09-cv-00985-MCE-JFM, 2009 WL 2914120, at *7 (E.D. Cal. Sept. 9, 2009) (unpublished). 15 3. Imposition of A Constructive Trust 16 Plaintiff’s eighth claim for relief seeks the imposition of a constructive trust on 17 the grounds that T.D. Service Co., Fremont Bank, and Federal National Mortgage Association 18 were “unjustly enriched” at plaintiff’s expense. (First Am. Compl. ¶ 63.) Although this claim is 19 alleged against “All Defendants,” plaintiff alleges no specific facts with respect to the acts of the 20 United States in his claim for a constructive trust. Plaintiff does not elaborate on the precise 21 grounds supporting the imposition of a constructive trust; instead, he refers to “the acts and/or 22 omissions as set forth herein.” (Id.) Under California law, “[a] constructive trust . . . is an equitable remedy, not a 23 24 26 25 26 As to the United States, plaintiff’s claim for cancellation should be dismissed for the additional reason that plaintiff has not sufficiently alleged or provided documents establishing that the United States or a federal agency is or was a party to a void or voidable contract that might be subject to cancellation. 33 1 substantive claim for relief.” PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & 2 Shapiro, LLP, 150 Cal. App. 4th 384, 398, 58 Cal. Rptr. 3d 516, 527 (Ct. App. 2007); accord 3 Batt v. City & County of San Francisco, 155 Cal. App. 4th 65, 82, 65 Cal. Rptr. 3d 716, 728 (Ct. 4 App. 2007) (stating that a constructive trust is not an independent cause of action); Glue-Fold, 5 Inc., 82 Cal. App. 4th at 1023 n.23, 98 Cal. Rptr. 2d at 663 n.3 (same); see also F.T.C. v. 6 Network Servs. Depot, Inc., 617 F.3d 1127, 1141 (9th Cir. 2010) (“Constructive trust is a form of 7 remedy that is flexibly fashioned in equity to provide relief where a balancing of interests in the 8 context of a particular case seems to call for it” (citation and quotation marks omitted).); Monday 9 v. Saxon Mortgage Servs., Inc., No. CIV. 2:10-989 WBS KJM, 2010 WL 2574080, at *6 (E.D. 10 Cal. June 25, 2010) (unpublished). “A plaintiff seeking imposition of a constructive trust must 11 show: (1) the existence of a res (property or some interest in property); (2) the right to that res; 12 and (3) the wrongful acquisition or detention of the res by another party who is not entitled to it.” 13 Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 909 (9th Cir. 2010) (citing Communist Party of 14 U.S. v. 522 Valencia, Inc., 35 Cal. App. 4th 980, 41 Cal. Rptr. 2d 618, 623-24 (Ct. App. 1995)). 15 Based on the foregoing, the undersigned recommends dismissal of plaintiff’s 16 eighth claim for relief with prejudice because it is not an independent claim. To the extent that 17 plaintiff has sought relief in the form of a constructive trust in the “prayer” portion of his First 18 Amended Complaint (First Am. Compl. at 16:19-22), that request is permissible, but is entirely 19 contingent on the success of his other claims that would purport to establish some unjust 20 enrichment to defendants. 21 22 D. Leave To Amend Would Be Futile For the reasons stated above, the undersigned recommends that all claims against 23 all defendants be dismissed with prejudice. Nothing in plaintiff’s operative complaint or other 24 submissions to this court persuade the undersigned that plaintiff could amend his First Amended 25 26 34 1 Complaint to state claim on which relief can be granted.27 2 Moreover, dismissal of plaintiff’s claims with prejudice is warranted because of 3 plaintiff’s demonstrated unwillingness to assist the court in finding a reason to provide leave to 4 amend. The undersigned held a hearing on November 18, 2010, to determine whether plaintiff 5 should be granted leave to amend as to the Financial Defendants’ motions to dismiss. The 6 undersigned asked plaintiff several questions for the express purpose of ascertaining whether 7 leave should be granted and relayed this purpose to plaintiff at the hearing. Plaintiff, however, 8 only responded that he considered these questions as an “interrogation” of which plaintiff was 9 given no advance notice. Therefore, plaintiff refused to answer any of the court’s questions. As 10 the undersigned repeatedly sought to make clear to plaintiff, these questions were intended to 11 assist plaintiff. Nevertheless, plaintiff remained unconvinced, and the hearing ended with 12 plaintiff having provided no responses to the court’s questions and instead having repeatedly 13 yelled at the undersigned. Plaintiff’s refusal to assist the court in determining whether to grant 14 leave to amend further supports dismissal with prejudice. 15 V. CONCLUSION 16 For the reasons stated above, IT IS HEREBY ORDERED that: 17 1. T.D. Service Company’s request for judicial notice is granted. 18 2. Federal National Mortgage Association and Fremont Bank’s request for 19 judicial notice is granted. 20 3. 21 It is FURTHER RECOMMENDED that: 22 1. 23 Plaintiff’s request for judicial notice is granted, as narrowed above. The motion to dismiss plaintiff’s First Amended Complaint filed by defendant T.D. Service Company (Dkt. No. 21) be granted. 24 25 26 27 In that regard, the undersigned has reviewed plaintiff’s purported “Second First Amended Complaint” and his purported “Third First Amended Complaint,” and they do not cure any of the deficiencies discussed herein. 35 1 2 3 2. The motion to dismiss plaintiff’s First Amended Complaint filed by defendants Fremont Bank and Federal National Mortgage Corporation (Dkt. No. 25) be granted. 3. The motion to dismiss plaintiff’s First Amended Complaint filed by 4 defendant United States of America (Dkt. No. 56), which the court construes a motion for 5 judgment on the pleadings in part, be granted. 6 7 4. Plaintiff’s First Amended Complaint (Dkt. No. 20) be dismissed with prejudice as to all defendants. 8 5. This case be closed and all dates in this matter be vacated. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). 13 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 14 Recommendations.” Any response to the objections shall be filed with the court and served on 15 all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). 16 Failure to file objections within the specified time may waive the right to appeal the District 17 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 18 1153, 1156-57 (9th Cir. 1991). 19 20 IT IS SO ORDERED AND RECOMMENDED. DATED: January 20, 2011 21 22 23 24 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 25 26 36

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