Opinion
CASE NO. 12-CV-1716- IEG (NLS)
06-10-2013
MONICA GRAJEDA, Plaintiff, v. BANK OF AMERICA, N.A., et al., Defendants.
ORDER GRANTING
DEFENDANTS' MOTION TO
DISMISS WITH PREJUDICE
[Doc. No. 13.]
Before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 13.] For the reasons below, Defendants' motion is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE without leave to amend.
BACKGROUND
This is a mortgage case. Plaintiff Monica Grajeda, proceeding pro se, filed a complaint in San Diego County Superior Court alleging an array of state law claims, all of which relating to a purported wrongful foreclosure. [Doc. No. 1 Ex. A.] Defendants timely removed to this court, [see Doc. No. 1 at 2], and moved to dismiss for failure to sate a claim. [Doc. No. 8.] Plaintiff failed to file an opposition, and the Court dismissed the complaint without prejudice and with leave to amend. [See Doc. No. 10.] Plaintiff filed an amended complaint, [Doc. No. 12], which Defendants presently move to dismiss with prejudice, [Doc. No. 13]. Again, Plaintiff filed no opposition.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). And though pro se complaints enjoy "the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), Rule 8 still "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.
DISCUSSION
Plaintiff's amended complaint fails to add any pertinent facts, much less cure the numerous deficiencies identified in the Court's previous order. Even affording every benefit of the doubt, Plaintiff's complaint again fails to allege sufficient facts to support any cognizable legal theory. In "the Ninth Circuit . . . plaintiffs do not enjoy unlimited opportunities to amend their complaints." Stone v. Conrad Preby's, 2013 WL 139939, at *2 (S.D. Cal. Jan. 10, 2013) (citing McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir.1996)). "Where . . . an amended complaint simply 'restate[s] the prior [dismissed claims] without curing their deficiencies,' the Court properly dismisses with prejudice." Roger v. County of San Diego, Cal., 2013 WL 1629208, at *2 (S.D. Cal. April 15, 2013) (quoting McHenry, 84 F.3d at 1174). Thus, and for the additional reasons specified below, Defendants' motion to dismiss is GRANTED and Plaintiff's claims are hereby DISMISSED WITH PREJUDICE.
1. Breach of Contract
Plaintiff's breach of contract claim attempts to enforce the United States' Home Affordable Modification Program ("HAMP") as a third-party beneficiary. [Doc. No. 12 at 15-17.] "To sue as a third-party beneficiary of a contract, the third party must show that the contract reflects the express or implied intention of the parties to the contract to benefit the third party." Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 2000). Borrowers such as Plaintiff are incidental rather than intended beneficiaries under HAMP and thus lack standing to enforce HAMP as third-party beneficiaries. See, e.g., Escobedo v. Countrywide Home Loans, Inc., 2009 WL 4981618, at *3 (S.D. Cal. Dec. 15, 2009). Accordingly, Plaintiff's breach of contract claim is DISMISSED.
2. Claims for Breach of Fiduciary Duty, Breach of Covenant of Good Faith and Fair Dealing, and Negligence
Plaintiff alleges claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and negligence, all premised on Defendants' failure to modify Plaintiff's loan under HAMP. [Doc. No. 12 at 15-17.] But Plaintiff fails to allege any duty of care, fiduciary or otherwise, owed by Defendants. "As a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Spencer v. DHI Mortg. Co. , Ltd., 642 F.Supp.2d 1153, 1161 (E.D. Cal. 2009); see also Wagner v. Benson, 101 Cal.App.3d 27, 35 (Cal. 1980). Plaintiff alleges no facts suggesting that Defendants exceeded their role as lender of money. Because Plaintiff fails to allege any facts showing any duty owed, much less breached, Plaintiff's claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and negligence are DISMISSED.
3. Due Process Claims
Plaintiff alleges that Defendants' failure to modify Plaintiff's loan under HAMP constitutes a violation of Due Process under the Fifth Amendment. [Doc. No. 12 at 17-18.] "To be entitled to procedural due process, a party must show a liberty or property interest in the benefit for which protection is sought." Buckingham v. Sec'y of U.S. Dep't of Agric., 603 F.3d 1073, 1081 (9th Cir. 2010). "HAMP does not confer a protected property interest." Phu Van Nguyen v. BAC Home Loans Services, LP, 2010 WL 3894986, at *4 (N.D. Cal. Oct. 1, 2010) (internal quotation omitted). Accordingly, Plaintiff's Due Process claims are DISMISSED.
5. Claims Premised on California Penal Code Provisions
Plaintiff also asserts claims under California Penal Code §§115 and 470. [See Doc. No. 12 at 20-26.] "Generally, criminal statutes do not confer private rights of action, and thus any party asserting such a private right bears the burden of establishing its existence." Bailey v. Clarke, 2012 WL 6720628, at *2 (S.D. Cal. Dec. 21, 2012) (citing Stupy v. United States Postal Serv., 951 F.2d 1079, 1081 (9th Cir. 1991)). Here, "all such claims 'must be dismissed because Plaintiff has provided no authority or argument supporting his implicit contention that he may maintain a private right of action under th[ese] criminal statute[s].'" Id. (quoting Yeager v. City of San Diego Cal., 2007 WL 7032933, at *9 (S.D. Cal. June 1, 2007)). Moreover, "[i]t is well settled that a private citizen may not use the courts as a means of forcing a criminal prosecution," Johnson v. Wennes, 2009 WL 1228500, at *4 (S.D. Cal. May 5, 2009) (citing United States v. Nixon, 418 U.S. 683, 694 (1974)), and thus "an individual may not bring criminal charges against someone by filing a complaint in this Court," id. (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)); see also Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (private individuals lack standing to assert criminal statutes). Accordingly, Plaintiff's claims premised on criminal statutes are DISMISSED.
6. Unfair Business Practices Claim
Unfair business practices claims under California Business and Professions Code § 17200 require allegations of a predicate violation. Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999); accord McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir. 2008). As discussed throughout, none of Plaintiff's asserted predicate violations is sufficiently pled, and thus neither is Plaintiff's dependant unfair business practices claim. [See infra and supra]Accordingly, Plaintiff's unfair business practices claim is DISMISSED.
7. Fraud Claims
Plaintiff also assert claims for fraud in the inducement, fraud in the concealment, and violation of California Civil Code section 1572 (Fraud). [Doc. No. 12 at 37-41.] To state any claim for fraud, Plaintiffs must plead: (1) a misrepresentation, (2) knowledge of its falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. Gil v. Bank of Am., N.A., 138 Cal. App. 4th 1371 (Cal. 2006). Here, in federal court, allegations of fraud are subject to the particularity requirements of Federal Rule of Civil Procedure 9(b); "the pleader must state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation." Misc. Serv. Workers, Drivers & Helpers v. Philco-Ford Corp., 661 F.2d 776, 782 (9th Cir. 1981) (citations omitted); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) ("Averments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged." (citation omitted)). Even most liberally construed, Plaintiff puts forth no allegations demonstrating Defendants' respective states of mind. [See Doc. No. 12 at 37-41.] Plaintiff thus fails to state any claim for fraud. See Quitaro Family Trust v. OneWest Bank, F.S.B., 2010 WL 392312, at *11 (S.D. Cal. Jan. 27, 2010). Thus, Plaintiff's fraud claims are DISMISSED.
8. Wrongful Foreclosure Claims
Wrongful foreclosure claims require allegations of credible tender. See Alicia v. G.E. Money Bank, 2009 WL 2136969, at *3 (N.D. Cal. July 16, 2009) ("When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure."). Plaintiff again fails to make any such allegation and thus her wrongful foreclosure claims are DISMISSED.
In addition to Plaintiff's seventh cause action expressly titled "wrongful foreclosure," [see Doc. No. 12 at 33-37], Plaintiff's claims premised on California Civil Code sections 2923 and 2924, [see Doc. No. 12 at 20], constitute wrongful foreclosure claims and thus fail for lack of tender. See Small v. Mortgage Electronic Registration Systems, Inc., 2010 WL 3719314, at *14 (E.D. Cal. Sept. 16, 2010).
9. Quiet Title Claim
So too, a "quiet title action is doomed in the absence of Plaintiffs' tender of the full amount owed." Gjurovich v. Cal., 2010 WL 4321604, at *8 (E.D. Cal. Oct. 26, 2010). Because Plaintiff fails to allege tender, see supra, her claim to quiet title fails, Gjurovich, 2010 WL 4321604, at *8, and is thus DISMISSED.
10. Slander of Title Claim
Slander of title claims require "(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss." Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal.App.4th 1040, 1050 (2009). Plaintiff makes no allegation that the notice of default at issue was false. [See Doc. No. 12.] This deficiency is fatal, see Velasco v. Security Nat. Mortg. Co., 823 F.Supp.2d 1061, 1069 (D. Hawai'i 2011), and thus Plaintiff's slander of title claim is DISMISSED.
11. Declaratory Relief Claim
Claims for declaratory relief may be dismissed "where the substantive suit would resolve the issues raised by the declaratory judgment action." Fimbres v. Chapel Mortg. Corp., 2009 WL 4163332, at *5 (S.D. Cal. Nov. 20, 2009) (internal quotation omitted). Here, the complaint fails to explain how or what declaratory relief would address or provide beyond the relief requested pursuant to the substantive claims. [See Doc. No. 12.] Nor does it explain how a declaratory judgment would in any way resolve uncertainties aside from those that appear to constitute Plaintiff's substantive claims. [Id.] Plaintiff's claim for declaratory relief is thus DISMISSED.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss. Plaintiff's claims are hereby DISMISSED WITH PREJUDICE without leave to amend. The clerk of the court is directed to close the case.
IT IS SO ORDERED.
_________________
IRMA E. GONZALEZ
United States District Judge