Darryl M. Jones v. Christian Trust et al

NOTICE OF MOTION AND MOTION to Dismiss Case -- Notice of Motion and Motion to Dismiss Second Amended Complaint of Darryl M. Jones; Memorandum of Points and Authorities in Support, with Proof of Service

C.D. Cal.November 23, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 NOTICE OF MOTION OF DISMISS AND MOTION TO DISMISS SECOND AMENDED COMPLAINT BRYAN CAVE LLP Nicole N. King (SBN 290204) 120 Broadway, Suite 300 Santa Monica, California 90401-2386 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 E-Mail: nicole.king@bryancave.com Attorneys for Defendant Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its Individual Capacity but as Trustee of ARLP Trust 5 (erroneously sued as “Christian Trust, a Division of Wilmington Savings Fund Society, FSB”) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Darryl M. Jones, Plaintiff(s), vs. Christiana Trust, a Division of Wilmington Savings Fund Society, FSB; and DOES 1-50, Defendant(s). Case No. 2:16-cv-06919-DMG (AGRx) Assigned to Hon. Dolly M. Gee NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED COMPLAINT OF DARRYL M. JONES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [Fed. R. Civ. P. 12(b)(6)] [Filed concurrently with Request for Judicial Notice; and [Proposed] Order] Date: January 20, 2017 Time: 9:30 a.m. Place:Courtroom 8C Action Filed: September 14, 2016 Trial Date: None Set Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 1 of 22 Page ID #:134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 1 NOTICE OF MOTION OF DISMISS TO SECOND AMENDED COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 20, 2017, at 9:30 a.m., in Courtroom #8C of the United State District Court, located at 312 N. Spring Street, Los Angeles, CA 90012-4793, the Honorable Dolly M. Gee presiding, defendant Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its Individual Capacity but as Trustee of ARLP Trust 5 (erroneously sued as “Christian Trust, a Division of Wilmington Savings Fund Society, FSB”) (collectively, “Defendant”) will, and hereby does, move this Court pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Second Amended Complaint of Plaintiff Darryl M. Jones (“Plaintiff”) for failure to state a claim upon which relief can be granted under Federal Rules of Civil Procedure 8(a)(2), 9(b) and 12(b)(6). This motion is made on the following grounds: 1. The Second Amended Complaint as a whole fails to state a claim upon which relief may be granted against Defendant. The Second Amended Complaint fails to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 2. The first claim for relief for “Quiet Title” fails to state a claim upon which relief can be granted against Defendant. 3. The second claim for relief for “Fraud” fails to state a claim upon which relief can be granted against Defendant, including the particularity required by Rule 9(b). 4. The third claim for relief for “Cancel Instrument” fails to state a claim upon which relief can be granted against Defendant. 5. The fourth claim for relief for “Slander of Title” fails to state a claim upon which relief can be granted against Defendant. Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 2 of 22 Page ID #:135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 2 NOTICE OF MOTION OF DISMISS TO SECOND AMENDED COMPLAINT This Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities, the concurrently filed Request for Judicial Notice, the [Proposed] Order, all pleadings and papers on file in this action, and such other matters as the Court may consider. Dated: November 23, 2016 BRYAN CAVE LLP Nicole N. King By: /s/ Nicole N. King Nicole N. King Attorneys for Defendant Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its Individual Capacity but as Trustee of ARLP Trust 5 (erroneously sued as “Christian Trust, a Division of Wilmington Savings Fund Society, FSB”) Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 3 of 22 Page ID #:136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 i TABLE OF CONTENTS TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES.............................................1 I. INTRODUCTION.............................................................................................1 II. STATEMENT OF FACTS and Summary of Allegations ................................2 A. The First Lienholder Foreclosed on the Property in April 2011 ............2 B. Defendant Holds Title to the Property Through a Quitclaim Deed........3 C. Plaintiff Does Not Hold Title to the Property by a Judgment Lien........3 D. Plaintiff Did Not Purchase the Property in a 2014 Foreclosure Sale .....3 E. U.S. Bank II Recorded Another Quit Claim Deed to Defendant............4 F. Plaintiff Disputes the February 2015 Quit Claim Deed..........................4 III. LEGAL STANDARD for motion to dismiss....................................................5 IV. ARGUMENT ....................................................................................................6 A. Plaintiff’s First Claim for Relief for Quiet Title Fails ............................6 1. Plaintiff Does Not Own the Property ...........................................7 2. Plaintiff May Not Quiet Title Post-Foreclosure ...........................9 B. Plaintiff’s Second Claim for Relief for Fraud Fails................................9 C. Plaintiff’s Third Claim for Relief for Cancellation of Instrument Fails .......................................................................................................11 D. Plaintiff’s Fourth Claim for Relief for Slander of Title Fails...............12 V. PLAINTIFF LACKS ARTICLE III STANDING TO SUE DEFENDANT ..13 VI. CONCLUSION ...............................................................................................14 Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 4 of 22 Page ID #:137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 ii TABLE OF AUTHORITIES TABLE OF CONTENTS Page Cases Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)..............................................................................................5 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1991) ....................................................................................6 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................5, 6 Bly-Magee v. California, 236 F. 3d 1014 (9th Cir. 2001) ...............................................................................10 Compass Bank v. Petersen, 886 F. Supp. 2d 1186 (C.D. Cal. 2012)..................................................................12 Distor v. US Bank NA, 2009 U.S. Dist. LEXIS 98361 (N.D. Cal. Oct. 22, 2009) ........................................9 Estate of Migliaccio v. Midland Nat’l Life Ins. Co., 436 F. Supp. 2d 1095 (C.D. Cal. 2006)....................................................................6 Gwin v. Pac. Coast Fin. Servs., No. 09cv2734 BTM (BLM), 2010 WL 1691567 (S.D. Cal. Apr. 23, 2010) .........11 Kelley v. Mortgage Elec. Reg. Sys., Inc., 642 F. Supp. 2d 1048 (N.D. Cal. 2009)...................................................................7 Lawson v. CitiCorp Trust Bank, FSB, No. 2:11-CV-01163 KJM, 2011 WL 3439223 (E.D. Cal. Aug. 5, 2011)..............11 Lopez v. Chase Home Fin., LLC, 2009 U.S. Dist. LEXIS 35206 (E.D. Cal. Apr. 8, 2009) ..........................................9 Lupertino v. Carbahal, 35 Cal. App. 3d 742 (1973) ......................................................................................8 Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 5 of 22 Page ID #:138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 iii TABLE OF AUTHORITIES McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ....................................................................................5 Moeller v. Lien, 25 Cal. App. 4th 822 (1994) .....................................................................................9 Nguyen v. Calhoun, 105 Cal. App. 4th 428 (2003)...................................................................................9 Ogilvie v. Select Portfolio Serv’g, 2012 WL 3010986 (N.D.Cal. July 23, 2012) .........................................................13 Parino v. BidRack, Inc., 838 F.Supp.2d 900 (N.D.Cal.2011)........................................................................10 Porter v. Superior Court, 73 Cal. App. 3d 793 (1977) ....................................................................................11 Qureshi v. Countrywide Home Loans, Inc., No. C 09-4198 SBA, 2010 WL 841669 (N.D. Cal. Mar. 10, 2010)......................11 Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp. 2d 1110 (N.D. Cal. 2013)......................................................10, 12, 13 Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952 (N.D. Cal. 2010)......................................................................6 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)......................................................................................13, 14 Truck Ins. Exchange v. Bennett, 53 Cal.App.4th 75 (1997) .......................................................................................12 Vasquez v. L.A. County, 487 F.3d 1246 (9th Cir. 2007) ..................................................................................6 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ................................................................................10 Statutes Cal. Civ. Code § 2924b................................................................................................8 Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 6 of 22 Page ID #:139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 iv TABLE OF AUTHORITIES Cal. Civ. Code § 3412................................................................................................12 Cal. Civ. Proc. Code § 761.020 ...................................................................................6 Cal. Civ.Code § 2924(d)............................................................................................13 Cal. Civil Code § 47(c)(1) .........................................................................................12 Fed. R. Civ. P. 9(b) ...................................................................................................10 Fed. R. Civ. P. 12(b)(6) ...............................................................................................5 Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 7 of 22 Page ID #:140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 1 MEMORANDUM OF POINTS AND AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In his Second Amended Complaint (“SAC”), Plaintiff Darryl Jones seeks to establish title against all adverse claims of interest in real property, located in Los Angeles, California (the “Property”). In April 2011, the first position lienholder on the Property conducted foreclosure, and sold the Property in a trustee’s sale. On December 20, 2013, defendant Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its Individual Capacity but as Trustee of ARLP Trust 5 (“Defendant”) obtained title to the Property by way of a quitclaim deed. On February 20, 2015, the same grantor under the quitclaim deed recorded another quitclaim deed, remitting the same interest in the Property to Defendant. Plaintiff now alleges the 2015 quitclaim deed injures his title to the Property. He claims he obtained a $1.5 million judgment against Defendant in February 2014 in a Los Angeles Superior Court Case, No. BC530522. He then alleges he secured the judgment by recording a notice of UCC Judgment Lien with the California Secretary of State on June 30, 2014. Plaintiff claims the judgment lien encumbers the Property. In lieu of a monetary payment, he alleges he purchased the Property in a trustee’s sale as collateral in July 2014. Based on the above, Plaintiff sues Defendant under claims for relief for Quiet Title; Fraud; Cancellation of Instruments; and Slander of Title. Except, Plaintiff’s claims lack merit, and should be dismissed as he cannot show he owns the Property. According to the case docket for the alleged civil action, Defendant was not a party in the lawsuit. The court did not enter a monetary judgment in favor of Plaintiff; it dismissed the action as to all parties on February 7, 2014. Plaintiff’s alleged Judgment Lien is thus invalid, and of no force or effect. In addition, the related foreclosure documents encumbering the Property show Plaintiff could not have purchased the Property in a trustee’s sale in July 2014. Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 8 of 22 Page ID #:141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 2 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff contends the trustee that conducted the foreclosure sale had authority under the deed of trust the original lienholder had foreclosed on in April 2011, but this theory is not plausible. After the April 2011 foreclosure sale, the deed of trust no longer secured an interest on the Property; the sale extinguished that lien. Plaintiff also could not have purchased the Property in a trustee’s sale because the related foreclosure documents state Plaintiff purchased the Property on July 16, 2014, which is before the trustee recorded the notice of default and notice of trustee’s sale on August 4, 2014. Because a trustee is required to record a notice of default and a notice of trustee’s sale before it may conduct a foreclosure sale, these documents are defective and cannot establish Plaintiff purchased the Property. In sum, Plaintiff cannot show he rightfully owns the Property. He therefore cannot maintain a claim for relief to establish title to the Property against Defendant. For these reasons, and those discussed below, this Court should dismiss Plaintiff’s SAC with prejudice. II. STATEMENT OF FACTS AND SUMMARY OF ALLEGATIONS A. The First Lienholder Foreclosed on the Property in April 2011 On February 22, 2006, Stacie Trimmer (“Trimmer”) executed a Deed of Trust, securing a $580,000 note (the “Trimmer Deed of Trust”). (Request for Judicial Notice (“RJN”) Ex. A.) The Deed of Trust encumbered her property, located at 5467 Bradna Drive, Los Angeles, California 90043 (the “Property”). (Id.) Trimmer defaulted on the note, and the owner of the note recorded a Notice of Default on February 19, 2009. (RJN, Ex. B.) On January 27, 2011, the trustee under the Trimmer Deed of Trust recorded a Notice of Trustee’s Sale. (RJN, Ex. C.) On April 1, 2011, U.S. Bank National Association, Trustee for SerVertis Fund Trust 2009-2 Grantor Trust Certificates, Series 2009-2 (“U.S. Bank”) purchased the Property at the trustee’s sale. (RJN, Ex. D.) The sale is evidenced by a Trustee’s Deed Upon Sale, bearing an April 7, 2011 recording date. (Id.) Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 9 of 22 Page ID #:142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 3 MEMORANDUM OF POINTS AND AUTHORITIES B. Defendant Holds Title to the Property Through a Quitclaim Deed On February 29, 2012, U.S. Bank recorded a Grant Deed, which transferred title to the Property to U.S. Bank, N.A., as Trustee for SerVertis REO Pass-Through Trust I (“U.S. Bank II”). (RJN, Ex. E.) On December 20, 2013, U.S. Bank II recorded a Quitclaim Deed that transferred its title to the Property to Defendant (the “2013 Quitclaim Deed”). (RJN, Ex. F.) C. Plaintiff Does Not Hold Title to the Property by a Judgment Lien Plaintiff alleges he obtained “a secure UCC Judgment lien for $1,500,000.00 [that he] recorded with the California Secretary of State on June 30, 2014 as document #14-7416969572” (the “Judgment Lien”). (SAC 2: 9-11, Ex. 3.) Plaintiff claims the Judgment Lien “attached” to the Property. (SAC 2: 11-13, Ex. 3.) The Judgment Lien’s notice identifies the debtors as: (1) “US Bank National Association;” (2) “US Bank National Association as Trustee SerVertis REO Pass- through Trust 1;” and (3) “Christiana Trust as Trustee of ARLP Trust 2.” (See SAC, Ex. 3.) The notice also states the “judgment was entered” in “Los Angeles Superior Court of California” on “February 4, 2014,” in Cases No. “BC530522.” (Id.) Plaintiff does not attach the alleged underlying judgment he contends he obtained against Defendant to his SAC. Nor can Plaintiff. According to the case docket for Los Angeles Superior Court Case No. BC530522, Defendant was not a party to the action. (RJN, Ex. G.) The docket shows the court did enter a monetary judgment in favor of Plaintiff, but dismissed the action as to all parties on February 7, 2014. (Id.) D. Plaintiff Did Not Purchase the Property in a 2014 Foreclosure Sale On August 4, 2014, an entity, entitled “Xavier Investment Title Company,” represented itself as trustee under the Trimmer Deed of Trust and recorded a Notice of Default and Election to Sell the Property in connection with the Judgment Lien. (RJN, Ex. H.) On the same date, “Xavier Investment Title Company” recorded a Notice of Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 10 of 22 Page ID #:143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 4 MEMORANDUM OF POINTS AND AUTHORITIES Trustee’s Sale in connection with the Trimmer Deed of Trust. (RJN, Ex. I.) The notice identifies $750,000.00 in unpaid balance of the “obligation” under the Trimmer Deed of Trust. (Id.) “Xavier Investment Title Company” later recorded a Trustee’s Deed Upon Sale on August 12, 2014. (RJN, Ex. J.) The Trustee’s Deed Upon Sale shows “Xavier Investment Title Company,” as trustee under the Trimmer Deed of Trust, sold the Property to Plaintiff for $450,000 on July 16, 2014. (Id.) According to the related foreclosure documents, when Plaintiff allegedly purchased the Property on July 16, 2014, the sale occurred before “Xavier Investment Title Company” recorded the Notice of Default and the Notice of Trustee’s sale on August 4, 2014. (See RJN, Exs. H-J.) Because a trustee is required to record a notice of default and a notice of trustee’s sale before it may conduct a foreclosure sale, these foreclosure documents are invalid, and of no force and effect. Plaintiff also does not allege facts showing he has any connection with “Xavier Investment Title Company” in his pleadings. (see SAC.) Nor does he show how this entity became a trustee under the Trimmer Deed of Trust, which was already foreclosed on since April 7, 2011. (Id.) E. U.S. Bank II Recorded Another Quit Claim Deed to Defendant On February 20, 2015, U.S. Bank II recorded another Quitclaim Deed, remitting onto Defendant “all the right, title, interest, claim, and demand” it had in the Property (the “2015 Quitclaim Deed”). (RJN, Ex. K.) F. Plaintiff Disputes the February 2015 Quit Claim Deed Plaintiff now alleges the 2015 Quitclaim Deed is “fraudulent” and “has placed a cloud on [his] title with the intent to hinder, delay and defraud” him “of any actions to” the Property. (SAC 2:20-23 ¶ 19.) Plaintiff claims he attempted to sell the Property or refinance the Property but was unable to as a result. (SAC 2:24-28.) Plaintiff therefore seeks to “quiet title against the claims of defendant[],” Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 11 of 22 Page ID #:144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 5 MEMORANDUM OF POINTS AND AUTHORITIES establishing it has “no right, title, estate, lien, or interest,” in the Property “as of the date his complaint [was] filed with the court.” (SAC ¶ 15-17.) Plaintiff then alleges Defendant has “been attempting to gain illegal possession of [the Property] by misrepresenting itself as the owner.” (SAC ¶ 20.) Plaintiff alleges the 2015 Quitclaim Deed is void and seeks an order cancelling the instrument. (SAC ¶ 23.) He also alleges Defendant “disparaged [his] exclusive valid title” by recording the 2015 Quitclaim Deed. (SAC ¶ 26.) Based on the above, Plaintiff sues Defendant under claims for relief for: (1) Quiet Title; (2) Fraud; (3) Cancellation of Instruments; and (4) Slander of Title. III. LEGAL STANDARD FOR MOTION TO DISMISS A complaint shall be dismissed when it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In deciding a motion to dismiss, a court reads Rule 12(b)(6) in conjunction with Rule 8(a)(2). See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8(a)(2) requires a pleading that states a claim for relief to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Voluminous, convoluted theories do not meet the standard. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (affirming dismissal where “despite all the pages . . . one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery”). Rule 8(a)(2) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. “To survive a motion to dismiss, 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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. The “[f]actual allegations must be enough to raise a right to relief above the speculative level . . .” Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 12 of 22 Page ID #:145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 6 MEMORANDUM OF POINTS AND AUTHORITIES Twombly, 550 U.S. at 555. Dismissal is proper where there is either “a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1991); Estate of Migliaccio v. Midland Nat’l Life Ins. Co., 436 F. Supp. 2d 1095, 1098 (C.D. Cal. 2006) (“unreasonable inferences or conclusory legal allegations cast in the form of factual allegations” will not survive a motion to dismiss). A court may dismiss claims without granting leave to amend if amendment would be futile. See Vasquez v. L.A. County, 487 F.3d 1246, 1258 (9th Cir. 2007). IV. ARGUMENT A. Plaintiff’s First Claim for Relief for Quiet Title Fails In his first claim for relief, Plaintiff seeks to “quiet title against the claims of defendant[],” establishing it has “no right, title, estate, lien, or interest,” in the Property “as of the date his complaint [was] filed with the court.” (SAC ¶ 15-17.) The purpose of a quiet title action is “to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.” Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 974 (N.D. Cal. 2010). “Quiet title claims are governed by section 761.020 of the California Code of Civil Procedure, which provides that a complaint to quiet title shall be verified.” Id. The statute also requires a Plaintiff to include: (a) a description of the property that is the subject of the action; (b) the title of the plaintiff as to which a determination under the statute is sought and the basis of the title; (c) the adverse claims to the title of the plaintiff against which a determination is sought; (d) the date as of which the determination is sought; and (e) a prayer for the determination of the title of the plaintiff against the adverse claims. Cal. Civ. Proc. Code § 761.020. Here, Plaintiff cannot pursue a quiet title claim because he does not own the Property, and he may not quiet title post-foreclosure. Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 13 of 22 Page ID #:146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 7 MEMORANDUM OF POINTS AND AUTHORITIES 1. Plaintiff Does Not Own the Property Plaintiff’s quiet title claim fails because he cannot allege facts to show he is the rightful owner of the Property. See Kelley v. Mortgage Elec. Reg. Sys., Inc., 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009) (A basic requirement of an action to quiet title is an allegation that plaintiffs “are the rightful owners of the property.”) Here, the recorded property documents show the original lender under the Trimmer Deed of Trust consummated foreclosure after Trimmer defaulted on her note in April 2011. (RJN, Ex. A-D.) When U.S. Bank purchased the Property on April 7, 2011 at the trustee’s sale, the related Trustee’s Deed Upon Sale divested Trimmer’s interest in the Property. (RJN, Ex. D.) The Trimmer Deed of Trust no longer secured an interest in the Property; the sale extinguished that lien. (Id.) On February 29, 2012, U.S. Bank recorded a Grant Deed, which transferred title to the Property to U.S. Bank II. (RJN, Ex. E.) U.S. Bank II later recorded the 2013 Quitclaim Deed, remitting its interest in the Property to Defendant. (RJN, Ex. F.) Defendant has thus held title to the Property since December 20, 2013. (Id.) Despite the above, Plaintiff alleges he obtained a 1,500,000.00 judgment on “February 4, 2014,” in a “Los Angeles Superior Court of California,” Case Number “BC530522.” (See SAC, Ex. 3.) Plaintiff alleges the $1.5 million judgment is secured by the Judgment Lien he recorded with the California Secretary of State on June 30, 2014. (SAC 2: 9-13, Ex. 3.) Plaintiff alleges the Judgment Lien secured interest in the Property as collateral. (Id.) In lieu of a monetary payment, he alleges he purchased the Property in a trustee’s sale in July 2014. (SAC 2: 7-8, Ex. 2.) The related foreclosure documents encumbering the Property show, “Xavier Investment Title Company” as “trustee” under the Trimmer Deed of Trust recorded a Notice of Default and Election to Sell the Property in connection with the Judgment Lien on August 4, 2014. (RJN, Ex. H.) On the same date, “Xavier Investment Title Company” recorded a Notice of Trustee’s Sale on the Property in connection with the Trimmer Deed of Trust. (RJN, Ex. I.) “Xavier Investment Title Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 14 of 22 Page ID #:147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 8 MEMORANDUM OF POINTS AND AUTHORITIES Company” later recorded a Trustee’s Deed Upon Sale on August 12, 2014. (RJN, Ex. J.) The trustee’s deed states “Xavier Investment Title Company” sold the Property to Plaintiff for $450,000 on July 16, 2014. (Id.) Plaintiff’s allegations are not plausible. First, Plaintiff cannot establish he obtained a monetary judgment against Defendant. According to the case docket for Los Angeles Superior Court, Case No. BC530522, Defendant was not a party to the action. (RJN, Ex. G.) The court did not enter a monetary judgment in favor of Plaintiff, but dismissed the action as to all parties on February 7, 2014. (Id.) Plaintiff’s Judgment Lien is thus invalid, and of no force and effect. Second, Plaintiff cannot show he purchased the Property in a trustee’s sale in July 2014. (RJN, Exs. H-J.) Under California’s non-judicial foreclosure statutes, “before [a] trustee could exercise the power of sale contained in [a] deed of trust…, it [is] mandatory the trustee file[] for record in the office of the recorder…a notice of default and election to sell.” Lupertino v. Carbahal, 35 Cal. App. 3d 742, 747 (1973); see Civil Code § 2924b. Civil Code Section 2924 “further provides that three months shall then elapse, after which time the…trustee or other person authorized to make the sale shall give notice of sale, stating the time and place thereof…” Lupertino, 35 Cal. App. 3d at 747. Here, according to the related foreclosure documents, when Plaintiff allegedly purchased the Property on July 16, 2014, the sale occurred before “Xavier Investment Title Company” recorded the Notice of Default and the Notice of Trustee’s Sale on August 4, 2014. (See RJN, Exs. H-J.) This transaction is implausible under California law. Plaintiff cannot now establish he purchased the Property in a lawful trustee’s sale. Plaintiff also does not allege facts showing his connection with “Xavier Investment Title Company.” (See SAC.) Nor does he allege facts showing how this entity became a trustee under the Trimmer Deed of Trust. (Id.) He cannot meet this pleading burden because after the April 2011 foreclosure sale occurred, the Trimmer Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 15 of 22 Page ID #:148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 9 MEMORANDUM OF POINTS AND AUTHORITIES Deed of Trust no longer secured an interest on the Property; the sale extinguished that lien. Because Plaintiff fails to show he obtained a monetary judgment against Defendant to perfect his alleged Judgment Lien on the Property, and cannot show he purchased the Property in August 2014, Plaintiff cannot establish he is the rightful owner of the Property. Plaintiff’s quiet title claim thus fails. 2. Plaintiff May Not Quiet Title Post-Foreclosure In addition, Plaintiff cannot pursue a quiet title claim in connection with the Trimmer Deed of Trust because he may not quiet title after a foreclosure sale has taken place. In California, once “the [P]roperty has already been sold, quiet title is no longer an appropriate action … [Any] claim to title has already been extinguished.” Distor v. US Bank NA, 2009 U.S. Dist. LEXIS 98361, at *17 (N.D. Cal. Oct. 22, 2009); Moeller v. Lien, 25 Cal. App. 4th 822, 831 (1994) (“A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender.”); Nguyen v. Calhoun, 105 Cal. App. 4th 428, 440-441 (2003). In other words, “[i]f the foreclosure is successful, title will change… Nothing is available . . . to resurrect the . . . quiet title cause of action, which is subject to dismissal.” Lopez v. Chase Home Fin., LLC, 2009 U.S. Dist. LEXIS 35206 (E.D. Cal. Apr. 8, 2009). Under the authority above, Plaintiff cannot state a quiet title claim to establish title to the Property in connection with the Trimmer Deed of Trust. As discussed above, after the April 2011 foreclosure sale occurred, the Trimmer Deed of Trust no longer secured an interest on the Property; the sale extinguished that lien. B. Plaintiff’s Second Claim for Relief for Fraud Fails In his second claim for relief for fraud, Plaintiff alleges the February 2015 Quitclaim Deed to Defendant is fraudulent. (SAC ¶ 19.) He then contends Defendant has “been attempting to gain illegal possession of [the Property] by Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 16 of 22 Page ID #:149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 10 MEMORANDUM OF POINTS AND AUTHORITIES misrepresenting itself as the owner.” (SAC ¶ 20.) Plaintiff’s allegations lack merit and are insufficient to satisfy the required elements for fraud. “The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp. 2d 1110, 1164 (N.D. Cal. 2013) (citations omitted). To plead a claim for fraud, Plaintiff’s allegations must be sufficiently detailed to meet the heightened Rule 9(b) pleading standard. Parino v. BidRack, Inc., 838 F. Supp. 2d 900, 906 (N.D. Cal. 2011). Federal Rule of Civil Procedure 9(b) requires that, in alleging fraud, “a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). “To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so they can defend against the charge and not just deny that they have done anything wrong.” Bly-Magee v. California, 236 F. 3d 1014, 1019 (9th Cir. 2001). “Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged. [A] plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.” Id.; accord Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Here, Plaintiff’s fraud claim fails because he cannot allege facts showing Defendant is “misrepresenting itself as the owner” of the Property through the 2015 Quitclaim Deed. As discussed above, the recorded property documents show Defendant is the rightfully owner of the Property. (RJN, Exs. A-D.) When U.S. Bank purchased the Property at the April 201l foreclosure sale in connection with the Trimmer Deed of Trust, it became the rightful owner of the Property. (RJN, Ex. D.) The sale divested Trimmer’s title to the Property, and extinguished the Trimmer Deed of Trust. (RJN, Ex. D.) U.S. Bank II then obtained Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 17 of 22 Page ID #:150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 11 MEMORANDUM OF POINTS AND AUTHORITIES title to the Property on February 29, 2012 by way of a recorded Grant Deed, and later recorded the 2013 Quitclaim Deed, remitting its interest in the Property to Defendant. (RJN, Exs. E-F.) The 2015 Quitclaim Deed did not alter that transfer, and Plaintiff’s existing allegations cannot suggest otherwise. (Id.) While Plaintiff alleges he purchased the Property in a trustee’s sale in July 2014 as collateral under the Judgment Lien securing an alleged monetary judgment against Defendant, these claims are not plausible for the reasons discussed above in Section IV. A. 1. Plaintiff’s claims thus lack merit. Aside from Plaintiff’s failure to plead an actionable misrepresentation or false representation by Defendant, he also does not (and cannot) allege facts showing reliance on any statement or conduct made by Defendant. (See SAC.) Nor does Plaintiff allege facts showing resulting damages. (Id.) His claim for fraud fails. C. Plaintiff’s Third Claim for Relief for Cancellation of Instrument Fails In his third claim for relief for cancellation of instrument, Plaintiff alleges the 2015 Quitclaim Deed is void and seeks an order cancelling it. (SAC ¶ 23.) At the outset, this claim fails because “[d]istrict courts have persuasively concluded that cancellation of an instrument is an equitable remedy and not an independent basis for liability. Lawson v. CitiCorp Trust Bank, FSB, No. 2:11-CV- 01163 KJM, 2011 WL 3439223, at *7 (E.D. Cal. Aug. 5, 2011); see, e.g., Gwin v. Pac. Coast Fin. Servs., No. 09cv2734 BTM (BLM), 2010 WL 1691567, at *4 (S.D. Cal. Apr. 23, 2010) (“Cancellation is an equitable remedy.”); Qureshi v. Countrywide Home Loans, Inc., No. C 09-4198 SBA, 2010 WL 841669, at *7 (N.D. Cal. Mar. 10, 2010) (“A request to cancel a trustee’s deed is a request for a remedy as opposed to an independent cause of action.”) (citing Porter v. Superior Court, 73 Cal. App. 3d 793, 799 (Ct. App. 1977)). Based on the authorities above, this Court should dismiss Plaintiff’s claim for cancellation on this basis alone. Alternatively, a Court may order cancellation of an invalid written instrument Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 18 of 22 Page ID #:151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 12 MEMORANDUM OF POINTS AND AUTHORITIES that is void or voidable. Compass Bank v. Petersen, 886 F. Supp. 2d 1186, 1194 (C.D. Cal. 2012) (citing Cal. Civ. Code § 3412 et seq.). A written instrument, in respect to which there is 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. Cal. Civ. Code § 3412. Here, Plaintiff’s claim fails because he cannot allege facts showing the 2015 Quitclaim Deed is void or voidable against him because the transfer of title to the Property to Defendant is valid for the reasons discussed in Section IV. A. 1., above. Plaintiff also does not (and cannot) offer facts showing how the alleged 2015 Quitclaim Deed could “cause serious injury” within the meaning of section 3412 if left outstanding because he does not own the Property. Plaintiff’s claim should thus be dismissed. D. Plaintiff’s Fourth Claim for Relief for Slander of Title Fails In his fourth claim for relief for slander of title, Plaintiff alleges Defendant “disparaged Plaintiff’s exclusive valid title” by recording the 2015 Quitclaim Deed. (SAC ¶ 26.) Plaintiff’s claim lacks merit. Slander of title “occurs when a person, without privilege to do so, publishes a false statement that disparages title to property and causes pecuniary loss.” Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp. 2d 1110, 1158 (N.D. Cal. 2013) Truck Ins. Exchange v. Bennett, 53 Cal.App.4th 75, 85 (1997). The required elements of a claim for slander of title are “(1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss.” Rockridge Trust, 985 F. Supp. 2d at 1158. California Civil Code § 47(c)(1) states: “[a] privileged publication or broadcast is one made: (c) [i]n a communication, without malice, to a person interested therein, (1) by one who is also interested.” Id. at 1158-59. Nonjudicial foreclosure documents are subject to this privilege. Id., citing See Cal. Civ.Code § Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 19 of 22 Page ID #:152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 13 MEMORANDUM OF POINTS AND AUTHORITIES 2924(d); see also Ogilvie v. Select Portfolio Serv’g, 2012 WL 3010986, at *3 (N.D.Cal. July 23, 2012) (collecting cases). Malice is defined as actual malice, meaning “that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiffs’ rights.” Rockridge Trust, 985 F. Supp. 2d at 1158-59. Here, Plaintiff’s slander of title claim fails because he cannot show the 2015 Quitclaim Deed is a false statement that disparages his title to the Property. For the reasons stated above, Plaintiff never obtained title to the Property after the first lienholder consummated foreclosure under the Trimmer Deed of Trust in April 2011. In addition, the 2015 Quitclaim Deed is a privileged publication because it is a subsequent transfer of title following a foreclosure sale between two entities who are both interested parties under that quitclaim deed. (See RJN, Exs. A-D.) Plaintiff also does not allege facts showing malice on behalf of Defendant. (See SAC.) Nor does he allege facts showing he suffered resulting pecuniary loss. (Id.) His slander of tile claim thus fails. V. PLAINTIFF LACKS ARTICLE III STANDING TO SUE DEFENDANT Lastly, all of Plaintiff’s claims for relief fail because he lacks standing to sue Defendant under Article III. “The judicial Power of the United States,” Art. III, § 1, . . . extends only to “Cases” and “Controversies.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. Id. The “irreducible constitutional minimum” of standing consists of three elements. Id. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Id. Where, as Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 20 of 22 Page ID #:153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171528.1 14 MEMORANDUM OF POINTS AND AUTHORITIES here, a case is at the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” each element. Id. Here, for the reasons discussed above, Plaintiff cannot allege facts showing he suffered an injury in fact that is traceable to Defendant’s conduct. Plaintiff fails to establish a relationship with Defendant. He is not a rightful owner of the Property, and has not established Defendant is indebted to him under any secured judgment encumbering the Property. Because Plaintiff cannot allege a loss of money or property due to any conduct by Defendant, any injury endured by Plaintiff cannot be redressed by a favorable judicial decision against Defendant. Plaintiff’s SAC should be dismissed on this basis alone. VI. CONCLUSION For the reasons discussed above, Plaintiff’s allegations are insufficient to state a claim for relief against Defendant. This Court should dismiss Plaintiff’s SAC with prejudice. Dated: November 23, 2016 BRYAN CAVE LLP Nicole N. King By: /s/ Nicole N. King Nicole N. King Attorneys for Defendant Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its Individual Capacity but as Trustee of ARLP Trust 5 (erroneously sued as “Christian Trust, a Division of Wilmington Savings Fund Society, FSB”) Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 21 of 22 Page ID #:154 1 PROOF OF SERVICE SM01DOCS\1171914.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 1013 A(3) CCP REVISED 5/1/88 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 120 Broadway, Suite 300, Santa Monica, CA 90401-2386. On November 23, 2016, I served the foregoing document described as NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED COMPLAINT OF DARRYL M. JONES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT on the interested party in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: Darryl M. Jones 5467 Branda Drive Los Angeles, CA 90043 Tel: (323) 381-6016 Plaintiff in Pro Per BY OVERNIGHT CARRIER: I deposited in a box or other facility maintained by FedEx, Golden State Overnight or other express carrier service, or delivered to a courier or driver authorized by said express carrier service to receive documents, a true copy of the foregoing document, in an envelope designated by said express service carrier, for overnight delivery, with delivery fees paid or provided for. FEDERAL: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on November 23, 2016, at Santa Monica, California. /s/ Raul Morales Raul Morales Case 2:16-cv-06919-DMG-AGR Document 21 Filed 11/23/16 Page 22 of 22 Page ID #:155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171879.1 [PROPOSED] ORDER BRYAN CAVE LLP Nicole N. King (SBN 290204) 120 Broadway, Suite 300 Santa Monica, California 90401-2386 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 E-Mail: nicole.king@bryancave.com Attorneys for Defendant Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its Individual Capacity but as Trustee of ARLP Trust 5 (erroneously sued as “Christian Trust, a Division of Wilmington Savings Fund Society, FSB”) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Darryl M. Jones, Plaintiff(s), vs. Christiana Trust, a Division of Wilmington Savings Fund Society, FSB; and DOES 1-50, Defendant(s). Case No. 2:16-cv-06919-DMG (AGRx) Assigned to Hon. Dolly M. Gee [PROPOSED] ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT OF DARRYL M. JONES [Filed concurrently with Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Support; and Request for Judicial Notice] Date: January 20, 2017 Time: 9:30 a.m. Place:Courtroom 8C Action Filed: September 14, 2016 Trial Date: None Set Case 2:16-cv-06919-DMG-AGR Document 21-1 Filed 11/23/16 Page 1 of 2 Page ID #:156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 1 2 0 B R O A D W A Y , S U IT E 3 0 0 S A N T A M O N I C A , C A 9 0 4 0 1 -2 3 8 6 SM01DOCS\1171879.1 1 [PROPOSED] ORDER [PROPOSED] ORDER The Motion to Dismiss the Second Amended Complaint of Plaintiff Darryl M. Jones by defendant Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, not in its Individual Capacity but as Trustee of ARLP Trust 5 (erroneously sued as “Christian Trust, a Division of Wilmington Savings Fund Society, FSB”) (collectively, “Defendant”) came on for regular hearing before this Court, the Honorable Dolly M. Gee presiding, on January 20, 2017, at 9:30 a.m., in Courtroom #8C of the United State District Court, located at 312 N. Spring Street, Los Angeles, CA 90012. Having read and considered Defendant’s motion and all papers submitted by the parties in support thereof and in opposition thereto, and having heard and considered the oral argument of counsel, and good cause appearing therefore, IT IS HEREBY ORDERED THAT: 1. Defendant’s motion is granted in its entirety without leave to amend because Plaintiff’s Second Amended Complaint fails to state a claim upon which relief can be granted against Defendant, and no amendment can cure the defects. 2. Plaintiff’s Second Amended Complaint is dismissed with prejudice. IT IS SO ORDERED. Dated: Hon. Dolly M. Gee United States District Judge Case 2:16-cv-06919-DMG-AGR Document 21-1 Filed 11/23/16 Page 2 of 2 Page ID #:157