Opinion
Case No. 11-6431-SC
11-26-2012
RICHARD SOWINSKI, Plaintiff, v. WELLS FARGO BANK, N.A., and DOES 1-10, Defendants.
ORDER GRANTING MOTION TO
DISMISS AND DENYING MOTION
TO EXPUNGE LIS PENDENS
I. INTRODUCTION
Plaintiff Richard Sowinski ("Plaintiff") challenges Defendant Wells Fargo Bank, N.A.'s ("Wells") foreclosure of his residential mortgage and the subsequent trustee sale of his residence. On December 2, 2011, Plaintiff filed a complaint in California Superior Court, which Wells timely removed to this Court. ECF No. 1 (notice of removal) Ex. A (complaint). Also on December 2, Plaintiff recorded a lis pendens against the subject property. RJN Ex. 9 ("Lis Pendens"). The property was sold at public auction on December 12, 2011. RJN Ex. 8 ("Trustee's Deed") at 2.
"A lis pendens is recorded by someone asserting a real property claim, to give notice that a lawsuit has been filed which may, if that person prevails, affect title to or possession of the real property described in the notice." Fed. Deposit Ins. Corp. v. Charlton, 17 Cal. App. 4th 1066, 1069 (Cal. Ct. App. 1993). "Once a lis pendens is filed, it clouds the title and effectively prevents the property's transfer until the litigation is resolved or the lis pendens is expunged." BGJ Associates, LLC v. Superior Court, 75 Cal. App. 4th 952 (Cal. Ct. App. 1999).
Wells submitted a request for judicial notice. ECF No. 20 ("RJN"). The RJN is unopposed and the exhibits it contains are judicially noticeable public documents. Accordingly, the RJN is GRANTED and the Court takes judicial notice of the documents.
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On February 13, 2012, Wells filed two motions: (1) to dismiss the complaint and (2) to expunge the lis pendens. ECF Nos. 12, 13. Plaintiff responded by filing an amended complaint, which is the operative complaint in this case. ECF No. 14 ("Am. Compl."). The amended complaint sets forth four claims: (1) quiet title under Cal. Civ. Proc. Code § 760.020, (2) declaratory relief, (3) injunctive relief, and (4) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq.
Following the filing of the amended complaint, Wells formally withdrew its motions to dismiss and expunge. ECF Nos. 16, 17. However, on March 9, 2012, Wells filed new motions to dismiss and expunge. ECF Nos. 18 ("MTD"), 19 ("MTE"). Both are pending and, because neither party has submitted further briefing, unopposed.
After the time for filing motions passed, but before the Court issued an order, the parties asked to engage in Court-sponsored mediation. Accordingly, the Court referred them to mediation and stayed the instant case pending completion of that process. See ECF No. 28 ("May 24 Order"). The mediation session ended without settlement and the mediator certifies that no further mediation is forthcoming. ECF No. 34. Further, the parties have filed a joint statement signaling mutual intent to continue to litigate the case. ECF No. 33. Accordingly, the Court proceeds to the merits of the pending motions to dismiss and expunge.
II. DISCUSSION
A. Motion to Dismiss
Wells's pending motion to dismiss, being unopposed, and good cause appearing, is GRANTED. Having reviewed the amended complaint carefully, the Court concludes that it contains little more than "labels and conclusions," which do not support a viable cause of action. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011). Additionally, Plaintiff's failure to articulate cognizable legal theories with respect to three of his four claims provide another reason for dismissal. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
As a preliminary matter, the Court notes that Plaintiff improperly asserts two claims styled "declaratory relief" and "injunctive relief." These are types of relief, not claims to relief. The availability of declaratory or injunctive relief depends on the viability of a legal claim entitling Plaintiff to such relief. Thus, Plaintiff's declaratory and injunctive relief "claims" are actually part of his prayer. Accordingly, though Plaintiff may still seek declaratory and injunctive relief in any further pleading, provided that he asserts a claim that could give rise to such relief, his standalone declaratory and injunctive relief "claims" are DISMISSED WITH PREJUDICE.
Plaintiff's two other claims, quiet title and UCL, are DISMISSED WITH LEAVE TO AMEND. Plaintiff's quiet title claim fails because Plaintiff does not allege tender. "A quiet title action must include: (1) a description of the property in question; (2) the basis for plaintiff's title; and (3) the adverse claims to plaintiff's title." Ananiev v. Aurora Loan Servs., LLC, C 12-2275 SI, 2012 WL 4099568, at *3 (N.D. Cal. Sept. 17, 2012) (citing Cal. Civ. Proc. Code § 760.020). "In order to satisfy the second requirement, plaintiff must allege that he has discharged his debt, regardless to whom it is owed." Id. (citing Kelley v. Mort. Elec. Registration Sys., Inc., 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009)). That is, to state a claim, Plaintiff must allege a valid and viable offer of tender. See Chancellor v. OneWest Bank, C 12-01068 LB, 2012 WL 3834951, at *10 (N.D. Cal. Sept. 4, 2012) (rejecting argument that California law excuses tender requirement for quiet title claims). Nowhere in Plaintiff's amended complaint does he do so. See Am. Compl. ¶¶ 10-23 [sic 24] (general allegations), 24-27 [sic 25-28] (quiet title claim). Accordingly, his quiet title claim fails as insufficiently pled.
Plaintiff's UCL claim also misses the mark. Plaintiff alleges only legal conclusions and generalities. E.g., id. ¶ 39 (alleging, without specifics, that Wells engaged in "a systematic, methodical, and general practice of defrauding [its] customers, the general public and the state and local government"). Moreover, Plaintiff's allegations sound in fraud, but fall far short of satisfying the heightened pleading standard of Rule 9(b). See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) ("To satisfy Rule 9(b), a pleading must identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false.") (internal quotation marks and brackets omitted). Additionally, while Plaintiff incorporates the amended complaint's general allegations by reference, he fails to specify how these support his UCL claim. See Am. Compl. ¶¶ 37-41. He also fails to identify on which "prong" of the UCL his claim rests. See id.; see also Saunders v. Superior Court, 27 Cal. App. 4th 832, 838-39 (1994) (distinguishing three prongs). In short, Plaintiff's UCL claim fails because he has yet to articulate a cognizable theory of recovery or to plead specific facts supporting it. Accordingly, his UCL claim is DISMISSED WITH LEAVE TO AMEND.
B. Motion to Expunge Lis Pendens
Due to Plaintiff's failure to oppose Defendant's motion to expunge, the Court would be well within its discretion to grant the motion. Plaintiff bore the burden of proving that the lis pendens should not be expunged, notwithstanding Wells being the moving party. Cal. Civ. Proc. Code § 405.30; Cua v. Mortgage Elec. Registration Sys., Inc., C 09-01605 SBA, 2012 WL 2792437, at *1 (N.D. Cal. July 9, 2012). By failing to oppose Wells's motion, Plaintiff failed to carry his burden and effectively consented to expungement. See Cua, 2012 WL 2792437, at *2; Sencion v. Saxon Mortg. Services, Inc., C 10-03108 SBA, 2012 WL 1355691, at *4 (N.D. Cal. Apr. 17, 2012). Additionally, Plaintiff's deficiently pled complaint does not show "by a preponderance of the evidence the probable validity of [his] real property claim." Hunting World, Inc. v. Superior Court, 22 Cal. App. 4th 67, 70 (1994); see also Carnero v. Fed. Home Loan Mortg. Corp., C 11-1029 WHA, 2012 WL 195408, at *3 (N.D. Cal. Jan. 23, 2012) (expunging lis pendens because complaint failed to state a real property claim).
Because Plaintiff has leave to amend, however, the Court exercises its discretion to deny the motion to expunge without prejudice. Compare Meneses v. CitiMortgage, Inc., 5:11-CV-05227 EJD, 2012 WL 1428908, at *3 (N.D. Cal. Apr. 24, 2012) (complaint dismissed with leave to amend; motion to expunge denied without prejudice) with Unlu v. Wells Fargo Bank NA, 5:10-CV-5422 EJD, 2011 WL 6141036 (N.D. Cal. Dec. 9, 2011) (complaint dismissed without leave to amend; motion to expunge granted). The Court is inclined to give Plaintiff one last chance to establish the "probable validity" of a claim concerning the real estate at issue.
III. CONCLUSION
For the foregoing reasons, Defendant Wells Fargo Bank N.A.'s motion to dismiss is GRANTED and its motion to expunge lis pendens is DENIED WITHOUT PREJUDICE.
Plaintiff Richard Sowinski's amended complaint is DISMISSED. His injunctive relief and declaratory relief "claims," because they are prayers for relief rather than claims for relief, are dismissed WITH PREJUDICE. Plaintiff's quiet title and UCL claims are dismissed WITHOUT PREJUDICE.
Plaintiff may file a second amended complaint within thirty (30) days from the signature date of this order. Failure to do so may result in final dismissal of this case.
IT IS SO ORDERED.
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UNITED STATES DISTRICT JUDGE