-EFB Rodriguez v. Wells Fargo Bank, N.A. et al, No. 2:2011cv00553 - Document 17 (E.D. Cal. 2011)
Court Description: ORDER granting 4 Motion to Dismiss signed by Judge John A. Mendez on 7/20/11: Within ten (10) days of this Order Ronald Uy and Stevan Henrioulle shall either (1) pay sanctions of $500.00 to the Clerk of the Court, or (2) submit a statement of good cause explaining their failure to comply with Local Rule 230(c). If Plaintiff wishes to file an Amended Complaint with respect to his promissory estoppel claim, it must be filed within 20 days of this Order. Otherwise, Plaintiff should file a notice of dismissal. (Kaminski, H)
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-EFB Rodriguez v. Wells Fargo Bank, N.A. et al Doc. 17 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 LUIS RODRIGUEZ, ) ) Plaintiff, ) ) v. ) ) WELLS FARGO BANK, N.A.; FIDELITY ) NATIONAL TITLE INC. COMPANY; ) FREDDIE MAC; CAL-WESTERN ) RECONVEYANCE CORP; and DOES 1 ) through 100, inclusive, ) ) Defendants. ) Case No. 2:11-CV-00553 JAM-EFB ORDER GRANTING DEFENDANT S MOTION TO DISMISS 20 This matter comes before the Court on Defendant Wells Fargo 21 Bank, N.A. s (“Defendant”) Motion to Dismiss (Doc. #4) Plaintiff 22 Luis Rodriguez s (“Plaintiff”) Complaint (Doc. #1, Exhibit A), 23 pursuant to Federal Rule of Civil Procedure 12(b)(6). 24 opposes Defendant s Motion to Dismiss (Docs. #7, #8).1 Plaintiff s opposition was due no later than May 18, 2011. 25 26 27 28 Plaintiff See E.D. Cal. L.R. 230(c) (requiring an opposition to be “served 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was originally scheduled for June 1, 2011. 1 Dockets.Justia.com 1 not less than fourteen (14) days preceding the noticed (or 2 continued) hearing date.”). 3 declaration, stating that to date it had not received an 4 opposition, or a statement of non-opposition, to Defendant s Motion 5 to Dismiss from the Plaintiff (Doc. # 6). 6 opposition on May 26, 2011 (Doc. #8). 7 opposition is untimely, the Court will consider it and decide 8 Defendant s Motion to Dismiss on the merits. 9 will impose sanctions on Plaintiff s counsel for the late filing. 10 11 On May 24, 2011, Defendant filed a Plaintiff then filed an Although Plaintiff s However, this Court For the reasons set forth below, Defendant s Motion to Dismiss is granted in its entirety. 12 13 I. FACTUAL AND PROCEDURAL BACKGROUND 14 This action arises out of the purchase, foreclosure, and 15 trustee s sale, which was scheduled for February 15, 2011, of real 16 property located at 951 Snow Lilly Avenue in Galt, California 17 (“Subject Property”). 18 (“Comp.”); Doc. #8. 19 applied for a loan from Defendant for the purchase of the Subject 20 Property. 21 acts by Defendant in the loan origination process. Id. See Doc. #1, Plaintiff s Complaint Around October, 2006, Plaintiff successfully Plaintiff seeks relief based on alleged wrongful Id.2 22 23 2 24 25 26 27 28 The Court notes with great concern that twelve of Plaintiff s seventeen causes of action, as plead in Plaintiff s complaint, are identical to those contained in a complaint filed in another case, by Plaintiff s attorneys, that was dismissed by this Court over one year ago for failure to state a claim. Compare Madrid v. J.P. Morgan Chase Bank, N.A., 2009 WL 3255880 (E.D. Cal. Oct. 8, 2009), 09-cv-00731 JAM-GGH, Docs. #1, 25, 40, 42, 51, with Comp. Boilerplate or “cut and paste” pleadings are strongly discouraged by this Court, particularly pleadings that contain claims previously dismissed. 2 1 II. OPINION 2 A. Legal Standard 3 A party may move to dismiss an action for failure to state a 4 claim upon which relief can be granted pursuant to Federal Rule of 5 Civil Procedure 12(b)(6). 6 court must accept the allegations in the complaint as true and draw 7 all reasonable inferences in favor of the plaintiff. 8 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 9 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, In considering a motion to dismiss, the Scheuer v. 10 322 (1972). 11 are not entitled to the assumption of truth. 12 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 13 550 U.S. 544, 555 (2007)). 14 plaintiff needs to plead “enough facts to state a claim to relief 15 that is plausible on its face.” 16 Dismissal is appropriate where the plaintiff fails to state a claim 17 supportable by a cognizable legal theory. 18 Police Dep t, 901 F.2d 696, 699 (9th Cir. 1990). 19 Assertions that are mere “legal conclusions,” however, Ashcroft v. Iqbal, To survive a motion to dismiss, a Twombly, 550 U.S. at 570. Balistreri v. Pacifica Upon granting a motion to dismiss for failure to state a 20 claim, the court has discretion to allow leave to amend the 21 complaint pursuant to Federal Rule of Civil Procedure section 22 15(a). 23 appropriate unless it is clear . . . that the complaint could not 24 be saved by amendment.” 25 316 F.3d 1048, 1052 (9th Cir. 2003). 26 “Dismissal with prejudice and without leave to amend is not Eminence Capital, L.L.C. v. Aspeon, Inc., Generally, the Court may not consider material beyond the 27 pleadings in ruling on a motion to dismiss for failure to state a 28 claim, unless the material is attached to, or relied on by, the 3 1 complaint, or the court takes judicial notice of matters of public 2 record, provided the facts are not subject to reasonable dispute. 3 E.g., Sherman v. Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. 4 Mar. 30, 2009). 5 notice of the Deed of Trust securing the loan, which was recorded 6 in the County of Sacramento. 7 dispute the authenticity of this document. 8 9 10 B. Here, Defendant requests the Court take judicial MTD at pg. 21-37. Plaintiff did not See Doc. #8. Claims for Relief 1. Breach of Fiduciary Duty Plaintiff asserts that a fiduciary relationship existed 11 between the Plaintiff and Defendant, which the Defendant 12 breached by acting for its own benefit. 13 Doc. #1 (“Comp.”) at ¶¶ 28-31. 14 did not plead an essential element of this cause of action, and 15 therefore, his claim must be dismissed. 16 Dismiss, Doc. #4 (“MTD”) at pg. 2-3. 17 Plaintiff s Complaint, Defendant argues that Plaintiff Defendant s Motion to “The elements of a cause of action for breach of fiduciary 18 duty are: 1) the existence of a fiduciary duty; 2) a breach of 19 the fiduciary duty; and 3) resulting damage.” 20 Weiss, 165 Cal.App.4th 515, 524 (Cal. Ct. App. 6d 2008). 21 Pellegrini v. As Defendant points out in its Motion to Dismiss, there is 22 no fiduciary relationship between a debtor and creditor. See, 23 e.g., Price v. Wells Fargo Bank, 213 Cal.App.3d 465, 476 (Cal. 24 Ct. App. 1989) (citing Downey v. Humphreys, 102 Cal.App.2d 323, 25 332 (Cal. Ct. App. 1951)). 26 financial institution owes no duty of care to a borrower when 27 the institution s involvement in the loan transaction does not 28 exceed the scope of its conventional role as a mere lender of Moreover, in the lending context, “a 4 1 money.” 2 Cal.App.3d 1089, 1096 (Cal. Ct. App. 3d 1991). 3 Nymark v. Heart Federal Savings & Loan Ass n, 231 As set forth in Plaintiff s complaint, the relationship 4 between Plaintiff and Defendant is that of a debtor-creditor, 5 which does not create a fiduciary relationship between the 6 parties. 7 Cal.App.3d 465 (Cal. Ct. App. 1989). 8 essential element, Plaintiff s cause of action for breach of 9 fiduciary duty cannot stand and is, therefore, dismissed with Cf. Comp. with Price v. Wells Fargo Bank, 213 Accordingly, without this 10 prejudice. 11 F.3d 1048, 1052 (9th Cir. 2003). 12 amend this claim would be futile; Plaintiff s attorneys have 13 previously pled causes of action for breach of fiduciary duty 14 under similar circumstances, which were all dismissed when the 15 defendant lending institution raised the same issue, and it is 16 clear that there is no relationship between Plaintiff and 17 Defendant in this case beyond that of a typical debtor-creditor 18 relationship. 19 3255880, 09-cv-00731 JAM-GGH, Docs. #1, 23, 25; see also 20 Dyachishin v. America s Wholesale Lenders, 2010 WL 1525703 at *4 21 (E.D. Cal. April 15, 2010). 22 See Eminence Capital, L.L.C. v. Aspeon, Inc., 316 2. Allowing Plaintiff leave to Compare Madrid v. J.P. Morgan Chase, 2009 WL Breach of Covenant of Good Faith and Fair Dealing 23 Plaintiff alleges that Defendant breached the covenant of good 24 faith and fair dealing “represented by the terms of the 30 yr loan, 25 Note, and Deed of Trust,” by failing to provide certain loan 26 documents or disclosures, in English and Spanish, failing to verify 27 Plaintiff s income, and placing Plaintiff in an improper loan 28 transaction. Comp. at ¶¶ 36-38. 5 1 In general, “[e]very contract imposes upon each party a duty 2 of good faith and fair dealing in its performance and its 3 enforcement.” 4 (9th Cir. 1999) (citations and internal quotations omitted). 5 Liability can arise when one party does something to “injure the 6 right of the other [party] to receive the benefits of the 7 agreement.” 8 589 (Cal. Ct. App. 2005). 9 limited to assuring compliance with the express terms of the Marsu, B.V. v. Walt Disney Co., 185 F.3d 932, 937 Andrews v. Mobile Aire Estates, 125 Cal.App.4th 578, Importantly, “the implied covenant is 10 contract, and cannot be extended to create obligations not 11 contemplated in the contract.” 12 Department of Parks & Recreation, 11 Cal.App.4th 1026, 1032 (Cal. 13 Ct. App. 1992) (emphasis added). 14 Racine & Laramie, Ltd. V. As argued by the Defendant, Plaintiff has failed to allege the 15 Defendant interfered with any of Plaintiff s rights under the 16 express terms of the contract. 17 fails to point to any terms of the contract that were affected by 18 the Defendant. 19 provide facts substantiating his claim for breach of the implied 20 covenant of good faith and fair dealing, Defendant s Motion to 21 Dismiss this claim is granted. 22 MTD at pg. 3-5. See Comp. at ¶¶ 36-38. Indeed, Plaintiff Because Plaintiff fails to Additionally, Plaintiff s attorneys have made similar claims 23 in previous cases, all of which have been dismissed because they do 24 not relate to obligations under the contract, an essential 25 requirement to maintain a cause of action for breach of the implied 26 covenant of good faith and fair dealing. 27 Morgan Chase Bank, N.A., 2009 WL 3255880 (E.D. Cal. Oct. 8, 2009), 28 09-cv-00731 JAM-GGH, Docs. #1, 23, 25, 30, 40, 42, 43, 51; 6 See, e.g., Madrid v. J.P. 1 Bezverkhov v. Cal-Western Reconveyance Corp., 2009 WL 4895581 at 2 *6-7 (E.D. Cal. Dec. 11, 2009). 3 Plaintiff s complaint, and Plaintiff s attorneys knowledge that 4 identical claims pled as they were in Plaintiff s complaint have 5 repeatedly failed as a matter of law, allowing leave to amend would 6 be futile. 7 the implied covenant of good faith and fair dealing is dismissed 8 with prejudice. 9 3. In light of the dearth of facts in Accordingly, Plaintiff s cause of action for breach of Deceit, California Civil Code §§ 1709-10 10 Plaintiff alleges Defendant made misrepresentations to him, 11 which caused Plaintiff to “pay more for his loan than the amount 12 Plaintiff could have qualified for.” Comp. at ¶ 44-45. 13 Deceit is defined as the “suppression of a fact, by one who is 14 bound to disclose it, or who gives information of other facts which 15 are likely to mislead for want of communication of that fact.” 16 Cal. Civ. Code § 1710. 17 e.g., Diaz v. Federal Express Corp., 373 F.Supp.2d 1034, 1066-1067 18 (C.D. 2005) (treating a claim under Section 1709 as a fraud claim). 19 Accordingly, the heightened pleading standards of Federal Rule of 20 Civil Procedure 9(b) apply. 21 (requiring a party to “state with particularity the circumstances 22 constituting fraud or mistake”). 23 In essence, deceit is a fraud claim. See, Id.; see also FED. R. CIV. P. 9(b) Plaintiff s claims are identical to those plead in other 24 complaints under “Fraud” sections. 25 Morgan Chase Bank, N.A., 2009 WL 3255880 (E.D. Cal. Oct. 8, 2009), 26 09-cv-00731 JAM-GGH, Doc. #1 at ¶¶ 60, 64-66, 68. 27 Motion to Dismiss points out that Plaintiff s complaint is 28 completely devoid of facts to substantiate his claim for “Deceit.” 7 Cf., e.g., Madrid v. J.P. Defendant s 1 MTD at pg. 5-6. 2 Northern and Eastern Districts of California, Plaintiff s 3 allegations are insufficient to state a claim under the heightened 4 pleading requirements. 5 2009). 6 prejudice. 7 9 Madrid, 2009 WL 3255880 (E.D. Cal. Oct. 8, Accordingly, Plaintiff s claim for deceit is dismissed with 4. 8 As made clear by this Court, and others in the Business & Professions Code § 17200 Plaintiff s claim for violations of the California Business and Professions Code section 17200 arises from acts that occurred 10 in the loan application and underwriting process. 11 58. 12 under section 17200 are barred by the applicable four year statute 13 of limitations. 14 17208. 15 Plaintiff filed the operative complaint on February 2, 2011, more 16 than four years after the alleged acts giving rise to Plaintiff s 17 claim under section 17200 occurred. 18 Motion to Dismiss is granted, and Plaintiff s claim for relief 19 under section 17200 is dismissed with prejudice, as Plaintiff will 20 not be able overcome the statute of limitations on amendment.3 21 However, Defendant correctly argues that Plaintiff s claims MTD at pg. 6-8; see also CAL. BUS. & PROF. CODE § The loan was closed no later than November 7, 2006, and 5. 22 Comp. at ¶¶ 47- Accordingly, Defendant s Promissory Estoppel Plaintiff alleges he relied on “false promises, 23 representations and assurances of Defendant[],” which resulted in 24 “Plaintiff fail[ing] to act as early as he would have otherwise.” 25 Comp. at ¶¶ 60-61. 26 In California, a claim for promissory estoppel requires: “(1) 27 3 28 The Court does not need to reach Defendant s other arguments for dismissal of Plaintiff s section 17200 claim in light of the statute of limitations issue. 8 1 the existence of a promise „clear and unambiguous in its terms; 2 (2) „reliance by the party to whom the promise is made; (3) that 3 any reliance was both „reasonable and foreseeable; and (4) that 4 the party asserting the estoppels was injured by his reliance.” 5 Krouse v. BAC Home Loans Servicing, LP, 2011 WL 2367093 at *3 (E.D. 6 Cal. Jun. 9, 2011) (quoting US Ecology, Inc. v. State, 129 7 Cal.App.4th 887, 901 (Cal. Ct. App. 2005)) (other citations 8 omitted). 9 devoid of any facts substantiating the essential elements of a Defendant correctly argues that Plaintiff s complaint is 10 claim for promissory estoppel. 11 fails to identify the promisor with any specificity, as he names 12 all defendants in this action, and it is unclear what the alleged 13 promise was that Plaintiff s claim is based upon. 14 ¶¶ 59-63. 15 is dismissed without prejudice. 16 17 MTD at pg. 8-9. Indeed, Plaintiff See Comp. at Accordingly, Plaintiff s claim for promissory estoppel 6. Fraud by Intentional Misrepresentation Defendant properly asserts that Plaintiff s claim for fraud by 18 intentional misrepresentation fails for the same reasons 19 Plaintiff s third cause of action for deceit failed. 20 pg. 5-6; cf., e.g., Bezverkhov v. Cal-Western Reconveyance Corp., 21 et al., 2009 WL 4895581 at *5-6 (E.D. Cal. Dec. 11, 2009). 22 Accordingly, Plaintiff s claim for fraud by intentional 23 misrepresentation is dismissed with prejudice. 24 25 7. MTD at pg. Fraud by Concealment Defendant properly asserts that Plaintiff s claim for fraud by 26 concealment fails for the same reasons Plaintiff s third cause of 27 action for deceit failed. 28 Bezverkhov v. Cal-Western Reconveyance Corp., et al., 2009 WL MTD at pg. pg. 5-6; cf., e.g., 9 1 4895581 at *5-6 (E.D. Cal. Dec. 11, 2009). 2 Plaintiff s claim for fraud by concealment is dismissed with 3 prejudice. 4 5 8. Accordingly, Unjust Enrichment Plaintiff alleges that Defendant made “false promises,” and 6 based on Plaintiff s reliance on those promises, Defendant received 7 profits and material gains. 8 unjust enrichment claim are the receipt of a benefit and unjust 9 retention of that benefit at the expense of another. 10 11 Comp. at ¶¶ 71-72. The elements of an Lectrodryer v. Seoulbank, 77 Cal.App.4th 723, 726 (Cal. Ct. App. 2000). Defendant correctly asserts in its Motion to Dismiss that 12 Plaintiff s complaint fails to present facts sufficient to 13 constitute a claim for unjust enrichment. 14 also Comp. at ¶¶ 71-72. 15 any facts supporting his conclusory allegations of unjust 16 enrichment. 17 MTD at pg. 9-10; see Indeed, Plaintiff s complaint is devoid of Accordingly, Defendant s Motion to Dismiss is granted. Allowing Plaintiff leave to amend this claim would be futile. 18 Plaintiff s attorneys have previously pled causes of action for 19 unjust enrichment under nearly identical circumstances, which were 20 dismissed for failure to state a claim for lack of factual 21 specificity. 22 Docs. #1, 25, 30, 40, 42, 43, 51. 23 for unjust enrichment is dismissed with prejudice. 24 25 9. See Madrid v. J.P. Morgan Chase, 09-cv-00731 JAM-GGH, Accordingly, Plaintiff s claim Quiet Title Plaintiff alleges Defendant “claimed an interest adverse to 26 Plaintiff s title in the [subject] property.” 27 order to plead a claim to quiet title, the complaint must state: 28 (1) a legal description of the property; (2) the title of the 10 Comp. at ¶ 74. In 1 plaintiff and the basis of the title; (3) the adverse claims to the 2 title of the plaintiff; (4) the date as of which the determination 3 is sought; and (5) a prayer for the determination of the title of 4 the plaintiff against adverse claims. 5 Importantly, “[a] mortgagor cannot quiet his title against the 6 mortgagee without paying the debt secured.” 7 America s Wholesale Lenders, 2010 WL 1525703 at *2 (E.D. Cal. April 8 15, 2010) (quoting Santos v. Countrywide Home Loans, 2009 WL 9 3756337 at *4 (E.D. Cal. Nov. 6, 2009)). 10 CAL. CIV. PROC. CODE § 761.020. Dyachishin v. Defendant correctly asserts that Plaintiff s complaint 11 completely fails to present facts substantiating the requisite 12 elements for a claim to quiet title. 13 Furthermore, allowing Plaintiff leave to amend this claim would be 14 futile. 15 action to quiet title under nearly identical circumstances, using 16 the exact same language contained in Plaintiff s complaint, which 17 were all dismissed for failure to state a claim. 18 J.P. Morgan Chase, 2009 WL 3255880, 09-cv-00731 JAM-GGH, Docs. #1, 19 25, 30, 40, 42, 43, 51; see also Dyachishin v. America s Wholesale 20 Lenders, 2010 WL 1525703 at *2-3 (E.D. Cal. April 15, 2010). 21 Moreover, Plaintiff does not allege anywhere in his complaint that 22 he can pay the debt secured, a requirement for a mortgagor to 23 succeed on a claim to quiet title. 24 at *2-3 (E.D. Cal. April 15, 2010). 25 Motion to Dismiss is granted, and Plaintiff s cause of action to 26 quiet title is dismissed with prejudice. 27 28 MTD at pg. 10-11. Plaintiff s attorneys have previously pled causes of 10. Compare Madrid v. See Dyachishin, 2010 WL 1525703 Accordingly, Defendant s California Rosenthal Act Plaintiff alleges that Defendant violated the California 11 1 Rosenthal Act by threatening Plaintiff with foreclosure and using 2 other “unfair or unconscionable means in an attempt to collect 3 debt.” 4 residential mortgage loan is not considered a “debt,” nor is 5 foreclosure considered “debt collection” under the Rosenthal Act. 6 See, e.g., Dyachishin v. America s Wholesale Lenders, 2010 WL 7 1525703 at *3-4 (E.D. Cal. April 15, 2010). 8 9 Comp. at ¶¶ 78-79. Defendant correctly points out that a Plaintiff s attorneys have made identical claims in previous cases, all of which have been dismissed because they are not 10 actionable under the Rosenthal Act. 11 1525703 at *3-4 (E.D. Cal. April 15, 2010). 12 quiet title cannot be cured by amendment because it is clear that 13 the “debt” in this case is not within the scope of the Rosenthal 14 Act. 15 Plaintiff s claim under the Rosenthal Act is dismissed with 16 prejudice. Plaintiff s claim to Accordingly, Defendant s Motion to Dismiss is granted and 17 18 See, e.g., Dyachishin, 2010 WL 11. Civil Conspiracy Plaintiff alleges Defendant participated in a conspiracy to 19 “implement a scheme to defraud and victimize Plaintiff. . . .” 20 Comp. at ¶¶ 81-85. 21 cannot maintain a cause of action for civil conspiracy, as “it is 22 not an independent tort.” 23 Equipment Corp. v. Litton Saudi Arabia, Ltd., 7 Cal.4th 503, 510-11 24 (1994). 25 tort liability arising from conspiracy presupposes that the 26 coconspirator is legally capable of committing the tort, i.e., that 27 he or she owes a duty to plaintiff recognized by law and is 28 potentially subject to liability for breach of that duty.” Defendant properly asserts that Plaintiff MTD at pg. 13; see also Applied As the California Court of Appeal stated: “By its nature, 12 Applied 1 Equipment Corp., 7 Cal.4th at 511. 2 Because a cause of action for “civil conspiracy” is not 3 cognizable, Defendant s Motion is to Dismiss is granted, and 4 Plaintiff s claim for civil conspiracy is dismissed with prejudice. 5 12. 6 Declaratory Relief Plaintiff requests declaratory relief in the form of a finding 7 by this Court that “the purported power of sale contained in the 8 Deed of Trust is of no force and effect . . . [and] further [] that 9 the title to the [subject] Property be re-conveyed to Plaintiff 10 free of any lines from any Defendants.” 11 Ninth Circuit, “[d]eclaratory relief is only appropriate (1) when 12 the judgment will serve a useful purpose in clarifying and settling 13 the legal relations in issue, and (2) when it will terminate and 14 afford relief from the uncertainty, insecurity, and controversy 15 giving rise to the proceeding.” 16 1376 (9th Cir. 1986) (citations omitted). 17 Comp. at ¶¶ 87-91. In the Guerra v. Sutton, 783 F.2d 1371, Defendant properly argues that Plaintiff s allegations are 18 insufficient to state a claim for declaratory relief. MTD at pg. 19 14.4 20 futile; Plaintiff s attorneys have previously pled causes of action 21 for declaratory relief under similar circumstances, which were all 22 dismissed for failure to state a claim. 23 America s Wholesale Lenders, 2010 WL 1525703 at *5 (E.D. Cal. April 24 15, 2010). 25 is dismissed, with prejudice. Allowing Plaintiff leave to amend in this case would be See, e.g., Dyachishin v. Accordingly, Plaintiff s claim for declaratory relief 26 4 27 28 The Court does have proper jurisdiction over Plaintiff s declaratory relief claim, contrary to Defendant s arguments, see Guerra v. Sutton, 783 F.2d 1371, and dismisses the claim solely based on Defendant s argument that Plaintiff s complaint does not demonstrate the necessity of declaratory relief under Guerra. 13 1 2 13. Rescission / Cancellation of a Void Instrument Plaintiff alleges that his consent to the loan was obtained by 3 Defendant though “mistake and fraud by engaging in deceptive 4 practices. . . .” 5 and set forth above, Plaintiff has failed to present any facts 6 substantiating his allegations of fraud. 7 6, & 7. 8 9 Comp. at ¶¶ 94-101. As presented by Defendant, See supra at sections 3, Allowing Plaintiff leave to amend this claim would be futile; Plaintiff s attorneys have previously plead causes of action for 10 rescission based on fraud, which were all dismissed for failure to 11 state a claim. 12 Lenders, 2010 WL 1525703 at *5 (E.D. Cal. April 15, 2010). 13 Accordingly, Plaintiff s claim for “rescission/cancellation of a 14 void instrument” is dismissed with prejudice. 15 16 14. See, e.g., Dyachishin v. America s Wholesale Accounting Plaintiff seeks an accounting of the amount he owes on his 17 loan, alleging Defendant improperly received loan payments. 18 at ¶¶ 103-04. 19 cause of action for accounting requires a showing that a 20 relationship exists between the plaintiff and defendant that 21 requires an accounting, and that some balance is due [to] plaintiff 22 that can only be ascertained by an accounting,” Zivanic v. 23 Washington Mutual Bank, F.A., 2010 WL 2354199 at *6-7 (N.D. Cal. 24 Jun. 9, 2010) (internal quotations and citations omitted). 25 Plaintiff has not presented any facts in his complaint supporting 26 his claim that he is entitled to an accounting. 27 28 Comp. As Defendant properly asserts in its Motion, “[a] MTD at pg. 14-15. Plaintiff s claim for an accounting is dismissed with prejudice because allowing amendment would be futile. 14 Plaintiff s 1 attorneys have previously pled causes of action for an accounting 2 under nearly identical circumstances, using the exact same language 3 contained in Plaintiff s complaint, which were dismissed for 4 failure to state a claim. 5 *6-7 (N.D. Cal. Jun. 9, 2010). 6 7 15. See, e.g., Zivanic, 2010 WL 2354199 at Violation of Code of Civil Procedure §§ 2934(d),(e) Plaintiff alleges that pursuant to the California Code of 8 Civil Procedure sections 2934(d) and (e), “the Deed is void and 9 cannot enforce the note [sic].” Comp. at ¶¶ 106-08. Defendant 10 correctly points out that section 2934 does not exist in the 11 California Code of Civil Procedure. 12 Plaintiff is referring to sections 2934a(d) and (e) of the Civil 13 Code, these sections govern the substitution of a trustee. 14 CAL. CIV. CODE §§ 2934a(d),(e). 15 Defendant is the lender and beneficiary on the Note and Deed of 16 Trust, and it is clear that Defendant is not the trustee and these 17 provisions are inapplicable to this case. 18 with CAL. CIV. CODE §§ 2934a(d),(e). 19 is granted, and Plaintiff s claim under “Code of Civil Procedure §§ 20 2934(d), (e)” is dismissed with prejudice. 21 22 16. MTD at pg. 16. Assuming See Plaintiff expressly alleges that Compare Comp. at ¶ 3 Accordingly, Defendant s Motion Civil Code § 1632 Plaintiff alleges that Defendant violated the California Civil 23 Code, section 1632, by presenting Plaintiff loan documents to sign 24 in English, yet conducting the negotiations on the loan Spanish. 25 Comp. at ¶¶ 110-11. 26 in a trade or business who negotiates primarily in Spanish, [or 27 another foreign language] . . . in the course of entering [into a 28 contract], shall deliver to the other party to the contract . . . a Section 1632 provides that “any person engaged 15 1 translation of the contract or agreement in the language in which 2 the contract or agreement was negotiated.” 3 However, the code expressly proscribes loans secured by real 4 property from its coverage. 5 Wholesale Lenders, 2010 WL 1525703 at *3 (E.D. Cal. April 15, 6 2010). 7 claim for a violation of section 1632 is dismissed with prejudice. 8 Allowing Plaintiff the opportunity to amend this claim would be 9 futile, because Plaintiff is clearly not entitled to relief under 10 Id.; accord Dyachishin v. America s Accordingly, Defendant s motion is granted, and Plaintiff s the plain language of the statute. 11 12 CAL. CIV. CODE § 1632. 17. Injunctive Relief In light of the dismissal of Plaintiff s other sixteen causes 13 of action, it is clear that Plaintiff cannot demonstrate a 14 reasonable probability of success on the merits. 15 America s Wholesale Lenders, 2010 WL 1525703 at *5 (E.D. Cal. April 16 15, 2010) (dismissing the plaintiff s claim for injunctive relief 17 because plaintiff failed to show a reasonable probability of 18 success on the merits); Bezverkhov v. Cal-Western Reconveyance 19 Corp., 2009 WL 4895581 at *8 (E.D. Cal. Dec. 11, 2009) (same). 20 Therefore, Defendant s Motion to Dismiss is granted, and 21 Plaintiff s claim for injunctive relief is dismissed with 22 prejudice. 23 Plaintiff s attorneys have previously plead causes of action for 24 injunctive relief, which were all dismissed for failure to state a 25 claim. 26 April 15, 2010). 27 28 See Dyachishin v. Allowing Plaintiff leave to amend would be futile; See, e.g., Dyachishin, 2010 WL 1525703 at *5 (E.D. Cal. III. ORDER After carefully considering the papers submitted in this 16 1 matter, it is hereby ordered that Defendant s Motion to Dismiss is 2 GRANTED, as follows: 3 4 5 6 1. Plaintiff s claim for breach of fiduciary duty is dismissed with prejudice; 2. Plaintiff s claim for breach of the implied covenant of good faith and fair dealing is dismissed with prejudice; 7 3. Plaintiff s claim for deceit is dismissed with prejudice; 8 4. Plaintiff s claim for violations of California Business 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Professions Code section 17200 is dismissed with prejudice; 5. Plaintiff s claim for promissory estoppel is dismissed without prejudice; 6. Plaintiff s claim for fraud by intentional misrepresentation is dismissed with prejudice; 7. Plaintiff s claim for fraud by concealment is dismissed with prejudice; 8. Plaintiff s claim for unjust enrichment is dismissed with prejudice; 9. Plaintiff s claim to quiet title is dismissed with prejudice; 10. Plaintiff s claim under the Rosenthal Act is dismissed with prejudice; 11. Plaintiff s claim for civil conspiracy is dismissed with prejudice; 12. Plaintiff s claim for declaratory relief is dismissed with prejudice; 13. Plaintiff s claim for rescission/cancellation of a void instrument is dismissed with prejudice; 14. Plaintiff s claim for an accounting is dismissed with 17 1 2 3 4 5 6 7 8 9 prejudice; 15. Plaintiff s claim for violations of the California code of civil procedure §§ 2934(d),(e) is dismissed with prejudice; 16. Plaintiff s claim under California Civil Code § 1632 is dismissed with prejudice; and 17. Plaintiff s claim for injunctive relief is dismissed with prejudice; It is further ordered that within ten (10) days of this Order Ronald Uy and Stevan Henrioulle shall either (1) pay sanctions of 10 $500.00 to the Clerk of the Court, or (2) submit a statement of 11 good cause explaining their failure to comply with Local Rule 12 230(c). 13 If Plaintiff wishes to file an Amended Complaint with respect 14 to his promissory estoppel claim, it must be filed within 20 days 15 of this Order. Otherwise, Plaintiff should file a notice of 16 dismissal. 17 IT IS SO ORDERED. 18 19 Dated: July 20, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 18
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