Dondi C. Stevens v. U.S. Bank, National Association et alNOTICE OF MOTION AND MOTION to Dismiss ComplaintC.D. Cal.January 10, 2017NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DONDI C. STEVENS, Plaintiff, v. U.S. BANK, NATIONAL ASSOCIATION; NDEX WEST, LLC & CHASE FINANCE LLC; METRO CITIES MORTGAGE, LLC; COLDWELL BANKER; & BRUCE VENTURELLI; AND ALL PERSONS CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO AND, DOES 1 THROUGH 10, INCLUSIVE, Defendants. CASE NO. 2:16-CV-06068-JFW-JCG Hon. John F. Walter DEFENDANT NDEX WEST, LLC’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; MEMORANDUM OF POINTS AND AUTHORITIES Date: February 13, 2017 Time: 1:30 p.m. Ctrm. 7A EDWARD A. TREDER State Bar No. 116307 JAMES T. LEE State Bar No. 110838 BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP 20955 Pathfinder Road, Suite 300 Diamond Bar, California 91765 (626) 915-5714 - Phone (626) 915-0289 - Fax JamesL@BDFGroup.com File No. 6428007 Attorneys for Defendant NDeX West, LLC Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 1 of 34 Page ID #:1134 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -2- 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 TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT ON February 13, 2017, at 1:30 p.m., or as soon thereafter as the matter may be heard in Courtroom 7A of the United States District Court, Central District of California, 350 W. 1st Street, Los Angeles, California, the Honorable John F. Walter, presiding, Defendant NDEX WEST, LLC (“NDEX”) will, and hereby does, move the Court to dismiss this action pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). As set forth more fully in the accompanying Memorandum of Points and Authorities (the “Memorandum”), this motion is made on the ground that the Complaint (the “Complaint” or “Compl.”) of Plaintiff DONDI C. STEVENS (“Plaintiff”) fails to state a claim against NDEX upon which relief can be\ granted. This motion is based on the attached Memorandum of Points and Authorities, and the Request for Judicial Notice concurrently filed herewith, the pleadings and papers on file herein, and upon such oral and documentary evidence as may be presented by the parties at the hearing. / / / / / / / / / Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 2 of 34 Page ID #:1135 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -3- 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 Compliance With Local Rule 7-3. This motion is made following the attempted communication between counsel and Plaintiff In Pro Per wherein counsel for NDEX West, LLC attempted to meet and confer with Plaintiff, by attempted telephone conferences. However, counsel for NDEX was unable to communicate with Plaintiff, telephonically or otherwise, despite leaving a telephone message on Friday January 6, 2017 and calling on January 9, 2017 and being unable to leave a message as the ‘message box was full’ and unable to accept any more messages. NDEX West, LLC’s counsel received no communication from Plaintiff. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP Dated: January 10, 2017 By: /s/ James T. Lee, Esq. JAMES T. LEE Attorneys for Defendant, NDEX WEST, LLC Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 3 of 34 Page ID #:1136 Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 4 of 34 Page ID #:1137 Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 5 of 34 Page ID #:1138 Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 6 of 34 Page ID #:1139 Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 7 of 34 Page ID #:1140 Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 8 of 34 Page ID #:1141 Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 9 of 34 Page ID #:1142 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff is a defaulted mortgage borrower who ultimately lost his home to foreclosure in 2011. He now brings this action over five years after the sale in an effort to set it aside and after a previous lawsuit in which he did not receive a Judgment against NDEX. Furthermore, the allegations in the Complaint are nonetheless bereft of any legal support. To start, Plaintiff has not tendered the outstanding balance due under the subject loan. For this reason his claims for quiet title and cancellation of instruments fail. Because Plaintiff’s claims for fraud and negligent misrepresentation are not pled with the requisite specificity, they necessarily fail. Plaintiff’s cause of action for violation of the Racketeer Influence Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., is similarly deficient because he has not alleged with particularity a pattern of racketeering activity that NDEX purportedly engaged in. His claim for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. 1692, et seq., also fails because a residential loan is not a debt and collecting on a residential loan does not constitute debt collection. Additionally, because Plaintiff did not invoke his right to rescind the subject loan within the applicable statute of limitations period, his claim under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq. fails. Further, Plaintiff’s civil rights claims should be dismissed because the Complaint does not allege any discrimination by NDEX. His causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing are also deficient because 1) Plaintiff had no contractual relationship with NDeX and 2) Plaintiff fails to allege that he has performed all of his Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 10 of 34 Page ID #:1143 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -2- 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 obligations under the subject loan or what specific contractual provision allegedly violated. Similarly, his claim for tortious interference of contractual relations should be dismissed because the Complaint does not allege a specific contract between Plaintiff and a third party with which NDEX interfered and because NDEX cannot be held liable under a tort theory. As for his unfair competition claim, Plaintiff lacks standing to allege violations of California’s unfair competition law (defined below) because he has suffered no economic harm directly attributable to NDEX’s actions. Even if he had standing, his claim nevertheless fails in the absence of a viable, antecedent claim for relief. His claim for declaratory and injunctive relief should be dismissed for the same reasons. Lastly, Plaintiff’s claims for invasion of privacy and trespass necessarily fail because he consented to U.S. Bank’s entry onto the Property. For these reasons, as explained more fully herein, the Complaint should be dismissed. Since amendment would be futile, the dismissal should be with prejudice. II. STATEMENT OF FACTS A. THE LOAN On or about April 7, 2005, Plaintiff obtained a mortgage loan (the “Loan”) from Metrocities Mortgage, LLC (“Metrocities”) in the original principal sum of $520,000.00 which was reflected in a promissory note (the “Note”) secured by a deed of trust (the “Deed of Trust”) encumbering the real property located at 1248 North San Marcos Road, Santa Barbara 93111. (See Request for Judicial Notice (“RJN”), Exhibit 1). On July 30, 2009, an Assignment of Deed of Trust (the “Assignment”) was recorded against the Property which put interested parties on notice that Metrocities assigned its interests under the Deed of Trust to U.S. Bank in its capacity as Trustee, Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 11 of 34 Page ID #:1144 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -3- 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 Successor In Interest to Wachovia Bank, National Association, as Trustee for J.P. Morgan Mortgage Trust 2005-A4. (See RJN, Exhibit 2). B. THE FORECLOSURE PROCEEDINGS As a result of Plaintiff’s default under the Loan, on June 30, 2009, a Notice of Default and Election to Sell Under Deed of Trust (“Notice of Default”) was recorded against the Property. (See RJN, Exhibit 3). On August 13, 2009, Defendant NDEX became the Substitute Trustee under the Deed of Trust, when the Substitution of Trustee was recorded on that day as Document No. 2009-0049653) (See RJN, Exhibit 4). Subsequently, on October 5, 2009, January 31, 2011, February 8, 2011, and May 18, 2011, separate Notices of Trustee’s Sale were recorded against the Property. (See RJN, Exhibits 5-8). Following a nonjudicial foreclosure sale, on September 29, 2011, a Trustee’s Deed Upon Sale (“TDUS”) was recorded whereby all right, title, and interest in the Property was transferred to U.S. Bank. (See RJN, Exhibit 9). C. THE CURRENT LAWSUIT On August 12, 2016, Plaintiff initiated this action by filing a Complaint against U.S. Bank, NDEX, Chase, Metrocities, Coldwell Banker, and Bruce Venturelli (“Venturelli”). Shortly thereafter, on September 2, 2016, Coldwell Banker and Venturelli filed a motion to dismiss the complaint. The Court granted Coldwell Banker and Venturelli’s motion on October 6, 2016, and dismissed the Complaint as to Coldwell Banker and Venturelli. On November 28, 2016, Defendant U.S. Bank, National Association, As Trustee, Successor In Interest To Wachovia Bank, National Association, As Trustee For J.P. Morgan Mortgage Trust 2005-A4 (“U.S. Bank”) filed a Motion to Dismiss set for hearing on January 9, 2017, at 1:30 p.m. in Courtroom 7A. On January 5, 2017, the Court entered an in Chambers Minute Order granting Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 12 of 34 Page ID #:1145 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -4- 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 U.S. Bank’s Motion To Dismiss and dismissed Plaintiff’s Complaint against Defendant U.S. Bank. The Court deemed NDEX December 23, 2016, Joinder to U.S. Bank’s Motion untimely and did not consider it. III. LEGAL AUTHORITY Pursuant to Federal Rule of Civil Procedure 8, a complaint “must contain a short and plain statement of the claim showing that the pleader is entitled to relief…” Fed. R. Civ. P. 8(a)(2). While the Federal Rules adopt a flexible pleading policy, every complaint must, at a minimum, “give the defendant fair notice of what the…claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Although a complaint does not need detailed factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ for his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.at 555 (citation omitted). Indeed, 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, 678 (2009) (citing Twombly, 550 U.S. at 570). The Supreme Court has held that: The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citations omitted). Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 13 of 34 Page ID #:1146 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -5- 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 Cir. 1990). In determining whether the complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiffs. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990); see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). The court may properly look beyond the complaint only to items in the record of the case or to matters of general public record. Emrich v. Touche Ross & Company, 846 F.2d 1190, 1198 (9th Cir. 1988). If the factual allegations in a complaint do not raise the “right to relief above the speculative level,” the complaint may be dismissed for failure to state a claim under Rule 12(b)(6). Twombly, 550 U.S. at 555. Finally, where amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the moving party has acted in bad faith, leave to amend should be denied. Leadsinger, Inc. v BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). IV. ANALYSIS A. PLAINTIFFS’ CLAIMS AGAINST NDEX FAIL TO ALLEGE ANY WRONGDOING IN THE LIMITED ROLE AS A FORECLOSURE TRUSTEE WHERE NDEX HAS IMMUNITY FOR RECORDING FORECLOSURE NOTICES Plaintiff’s claims (which appear to be alleged against all defendants) fail to allege any facts to suggest any liability by the foreclosure trustee NDEX with respect to its limited role as the foreclosure trustee. The foreclosure trustee’s rights, powers and duties regarding recording the foreclosure notices such as the Notice of Default, Notice of Trustee’s Sale, and Trustee’s Deed Upon Sale are strictly defined in California Civil Code Sections 2924 et seq. and limited by the Deed of Trust and governing statutes and these duties cannot be expanded by the Courts and no other common law duties exist. Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 14 of 34 Page ID #:1147 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -6- 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 28 288, 295. A trustee is immune from recording privileged communications such as foreclosure notices as alleged. Civ. Code §47(b)(1); Civ. Code § 2924(d) (“All of the following shall constitute privileged communications pursuant to Section 47: (1) [t]he mailing, publication, and delivery of [nonjudicial foreclosure] notices . . . (2) [p]erformance of [nonjudicial foreclosure] procedures....”); A trustee even incurs no liability for recording foreclosure notices in error based on information provided by the loan servicer/beneficiary. Civ. Code § 2924(b). The trustee is not a fiduciary and does not have general fiduciary duties to the trustor or the beneficiary. Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 927; Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 819; Hatch v. Collins (1990) 225 Cal.App.3d 1104, 1111-1112; Stephens, Partain & Cunningham v. Hollis (1987) 196 Cal.App.3d 948, 955. The trustee under a deed of trust has none of the incidents of ownership except the power to convey on the trustor’s default. Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 336; Blair v. Blair (1941) 44 Cal.App.2d 140, 146; Pacific States Savings & Loan Co. v. North American Bond & Mortg. Co. (1940) 37 Cal.App.2d 307, 309. “The trustee has no duty or authority to occupy, transfer, encumber, or care for the property; has no concern with the property; probably has never seen the property; and has no responsibilities regarding the property.” Miller and Star California Real Estate (4th Ed., October 2015), 5 Cal. Real Est. § 13:4 (Capacity, duties, and authority of trustee- in general.) Here, Plaintiffs have made no specific allegations of wrongdoing by NDEX. Thus, even if there was any error with respect to foreclosing, any good faith reliance by NDEX bars any liability against both of these defendants. Civ. Code § 2924(b). All of the claims alleged against NDEX should be dismissed with prejudice. / / / / / / / / / Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 15 of 34 Page ID #:1148 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -7- 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. PLAINTIFF DOES NOT HAVE STANDING TO RAISE A POSTFORECLOSURE SALE CHALLENGE Under California law, the “tender rule” requires that an action to set aside a sale “for irregularities in sale notice or procedure” be “accompanied by an offer to pay the full amount of the debt for which the property was security.” Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575, 578 (1984) (citing Karlsen v. American Savings & Loan Association, 15 Cal.App.3d 112, 117 (1971)). Thus, any “cause of action ‘implicitly integrated’ with the irregular sale fails unless the trustor can allege and establish a valid tender.” Arnolds Management Corp., 158 Cal.App.3d at 579 (citing Karlsen, 15 Cal.App.3d at 121). “The rationale behind the rule is that if the borrower could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the borrower.” Lona v. Citibank, N.A., 202 Cal.App.4th 89, 112 (2011) (citation omitted). 1. No Allegation of Tender Pursuant to the Complaint, Plaintiff seeks to challenge the validity of the foreclosure sale of the Property. As a result, the tender requirement applies in this case. The Complaint fails to allege that Plaintiff attempted to tender, has tendered, or has the ability to tender the full amount due on the Loan. Absent a valid tender, Plaintiff lacks standing to challenge any aspect of the foreclosure sale. It follows that Plaintiff cannot state a claim for wrongful foreclosure. 2. No Exceptions Apply Admittedly, California courts have recognized exceptions to the tender rule where: (1) the validity of the underlying debt is in dispute; (2) the plaintiff has a counter-claim or setoff against the foreclosing party; (3) it would be inequitable to apply the tender rule; or (4) the trustee’s deed is void on its face. Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 16 of 34 Page ID #:1149 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -8- 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 See Multani v. Witkin & Neal, 215 Cal.App.4th 1428, 1454-55 (2013). None of these exceptions apply in this case. As set forth below, there are no valid grounds identified in the Complaint for concluding that the Loan is invalid or that the TDUS is void. Nor are there facts in the Complaint supporting the other recognized exceptions to the tender rule. C. PLAINTIFF FAILS TO STATE A CLAIM FOR QUIET TITLE AND ADVERSE POSSESSION 1. Quiet Title The purpose of a quiet title action is to finally settle and determine the parties’ conflicting claims to property and to obtain a declaration of the interest of each party. See Newman v. Cornelius, 3 Cal.App.3d 279, 284 (1970). In an action to quiet title, the quiet title claimant has the burden of proof to show every element of the right claimed. See Tulare Dist. v. Lindsay-Strathmore Dist., 3 Cal.2d 489, 548 (1935). For a trustor to quiet title against a secured lender, he must first pay the outstanding debt on which the deed of trust is based. See Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49, 86 (2013). “This rule is based upon the equitable principle that he who seeks equity must do equity.” Mix v. Sodd, 126 Cal.App.3d 386, 390 (1981). Through the Complaint, Plaintiff seeks to quiet title despite his inability to establish that the Deed of Trust, Assignment, Notice of Default, and the TDUS were wrongful or improperly cloud his title. None of the allegations in the Complaint are sufficient to establish a basis for setting aside the sale. More fundamentally, Plaintiff’s claim is defective due to his failure to repay, or offer to repay, the Loan. Additionally, NDEX, as merely the substitute trustee under the foreclosed deed of trust makes no claim of title to the property, adverse to Plaintiff or otherwise. Therefore, Plaintiff’s claim should therefore be dismissed. Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 17 of 34 Page ID #:1150 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -9- 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 2. Adverse Possession Under California law, a plaintiff attempting to establish title by adverse possession must prove the following elements: “(1) tax payments, (2) actual possession which is (3) open and notorious, (4) continuous and uninterrupted for five years, (5) hostile and adverse to the true owner’s title, and (6) under either color of title or claim of right.” California Maryland Funding, Inc. v. Lowe, 37 Cal.App.4th 1798, 1803 (1995). Plaintiff’s claim for adverse possession fails because he has not alleged sufficient facts to establish all of the elements of the claim. In fact, the Complaint does not allege that Plaintiff made any tax payments on the Property since the date his adverse possession allegedly commenced (i.e., April 13, 2011). (See Compl., ¶¶ 37-48). Importantly, where occupancy and claim start at a time of year when payment of all taxes cannot be made in five years, more than five years must elapse before title by adverse possession can be established. See Smith v. Byer, 179 Cal.App.2d 118, 120 (1960). Under California law, the first post-adverse possession installment for taxes on the Property did not come due until November 1, 2011, and the second installment was not due until February 1, 2012. See Cal. Rev. & Tax Code §§ 2605(b), 2606. Because this action was filed less than five years after February 1, 2012, Plaintiff’s adverse possession claim is not ripe. Furthermore, NDEX, as merely the substitute trustee under the foreclosed deed of trust makes no claim of title to the property, adverse to Plaintiff or otherwise. For the foregoing reasons, Plaintiff fails to state a claim for adverse possession. D. PLAINTIFF FAILS TO STATE A CLAIM FOR FRAUD AND NEGLIGENT MISREPRESENTATION Under California law, the elements for a cause of action for negligent misrepresentation consist of: (1) a misrepresentation of a past or existing Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 18 of 34 Page ID #:1151 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -10- 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 material fact; (2) without reasonable grounds for believing it to be true; (3) with intent to induce another’s reliance on the fact misrepresented; (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed; and (5) damages. See Fox v. Pollack, 181 Cal.App.3d 954, 962 (1986). Similarly, the elements of fraud or intentional misrepresentation are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. See Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4th 979, 990 (2004). It is well-established that claims for negligent misrepresentation and fraud must meet the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. See Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1141 (C.D. Cal. 2003); Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003); Gilmore v. Wells Fargo Bank N.A., 75 F.Supp.3d 1255, 1270 (N.D. Cal. 2014). To meet this standard, a plaintiff must specify: (1) “the time, place and specific content of the fraudulent representation;” (2) “the identity of the person engaged in the fraud;” and (3) “the circumstances indicating falseness or the manner in which the representations were false and misleading.” See id. at 1270. Importantly, claims for fraud and negligent misrepresentation are subject to a three-year statute of limitations. See Cal. Civ. Proc. Code § 338(d). Although not entirely clear, Plaintiff’s fraud-related claims are based on his contention that the Deed of Trust, Notice of Default, Assignment, Notice of Default, and foreclosure sale were fraudulent. As set forth above, these documents were recorded in 2005 and 2009, and the foreclosure sale was conducted in 2011. Based on these dates, Plaintiff’s deadline to file his Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 19 of 34 Page ID #:1152 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -11- 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 Complaint was 2015, at the very latest. Since he did not timely file his Complaint, Plaintiff’s fraud-based claims are time-barred. Even if Plaintiff’s fraud-based claims are not time-barred, they should nevertheless be dismissed due to Plaintiff’s failure to comply with the heightened pleading requirements of Rule 9(b). Indeed, Plaintiff fails to even differentiate between the defendants, much less clearly allege what employee or agent of each defendant made the purported misrepresentations to him. Further, to the extent that Plaintiff’s claim is based on his contention that the Assignment is void because it was robo-signed, the claim lacks merit. This is because courts have routinely recognized that a borrower lacks standing to challenge an assignment based on allegations of robo-signing. See Pratap v. Wells Fargo Bank, N.A., 63 F.Supp.3d 1101, 1109 (N.D. Cal. 2014). Moreover, even if the Assignment was robo-signed, it would only be voidable, not void. See id. As a result, Plaintiff does not have standing to challenge the Assignment. See Yvanova v. New Century Mortgage Corp., 62 Cal.4th 919, 942-43 (2016) (holding that a borrower only has standing to challenge an assignment of deed of trust where the defect in the assignment renders the assignment void, rather than voidable). Lastly, because Plaintiff has not alleged a misrepresentation by NDEX, he cannot establish that he justifiably relied on or was damaged by any purported misrepresentation. Ultimately, any claimed damages relating to Plaintiff’s loss of the Property are the result of his failure to make his Loan payments, not any conduct by NDEX. Accordingly, Plaintiff’s fraud-based causes of action should be dismissed. / / / / / / / / / Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 20 of 34 Page ID #:1153 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -12- 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 E. PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATIONS OF THE RACKETEER INFLUENCE CORRUPT ORGANIZATIONS ACT Conduct must be criminal to qualify as racketeering activity within the meaning of RICO. 18 U.S.C. § 1961(1); Gervase v. Sup.Ct., 31 Cal.App.4th 1218 (1995). In order to allege a civil RICO claim, a party must allege facts sufficient to show a pattern of racketeering activity sufficient to bring the claim within the provisions of Section 1961(1), which defines racketeering as certain specifically enumerated state felonies and violations of specific sections of the United States Criminal Code. Plaintiff’s RICO claim fails to meet the strict pleading requirements in that the predicate acts are not alleged with particularity and a pattern of racketeering activity cannot be alleged. See Globe Internat., Inc. v. Sup. Ct., 9 Cal.App.4th 393, 397 (1992). Even if construed in the light most favorable to Plaintiff, his claim under RICO does not even satisfy the plausibility standard of Rule 8. In sum, the RICO claim against NDEX is fatally insufficient and cannot be pled around. Accordingly, this claim should be dismissed. F. PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATIONS OF THE FAIR DEBT COLLECTIONS PRACTICES ACT Plaintiff’s claim under the FDCPA fails for various reasons. First, courts have regularly recognized that a residential loan is not a debt for the purposes of the FDCPA. Fuentes v. Deutsche Bank, 2009 WL 1971610, at *3 (S.D. Cal. 2009). Because the Loan is a residential mortgage loan, it is not a debt within the meaning of the FDCPA. Second, a foreclosure trustee is not a debt collector under California law. Pfeifer v. Countrywide Home Loans, Inc., (2012) 211 Cal.App.4th 1250, 1264; Santoro v. CTC Foreclosure Service (9th Cir. 2001) 12 Fed.Appx. 476. Furthermore, foreclosure trustees are not debt collectors within Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 21 of 34 Page ID #:1154 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -13- 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 the meaning of the Fair Debt Collections Practices Act. Gonzalez v. CAN Foreclosure Service, Inc. (S.D. Cal. 2011) 2011 WL 2580681. Third, there are no allegations in the Complaint establishing the specific collection activity that NDEX purportedly engaged in. To the extent that this claim is based on foreclosure proceedings against the Property, these proceedings do not constitute “debt collection” as a matter of law. See Walker v. Equity 1 Lenders Group, 2009 WL 1364430, at *7 (S.D. Cal. 2009). Lastly, even if Plaintiff could establish that the FDCPA applied to NDEX, he cannot demonstrate that NDEX has violated its provisions. In fact, Plaintiff does not even identify a specific provision of the FDCPA that NDEX is alleged to have violated. For the aforementioned reasons, Plaintiff’s claim under the FDCPA fails. G. PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATION OF THE TRUTH IN LENDING ACT Plaintiff alleges in the Complaint that defendants violated the TILA by failing to provide the required disclosures under the statute. (See Compl., ¶¶ 100-02). A claim for rescission under TILA has a three-year statute of limitations if a lender fails to make required disclosures. See 15 U.S.C. § 1635(f). To exercise the right to rescind a loan under TILA within this statutory period, a borrower must provide written notice to the lender within three years of the date the transaction was consummated. See Jesinoski v. Countrywide Home Loans, Inc., --- U.S. ---, 135 S. Ct. 790, 793, (2015). For purposes of TILA, a loan is consummated at “the time that a consumer becomes contractually obligated on a credit transaction.” 12 C.F.R. § 226.2(a)(13). As evidenced by the Deed of Trust, the Loan was consummated on April 7, 2005. (See RJN, Exhibit 1). None of the allegations in the Complaint establish that Plaintiff invoked his right to rescind the Loan within three years of this date. Additionally, NDEX in no way participated in the loan’s origination and Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 22 of 34 Page ID #:1155 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -14- 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 did not become involved with this loan until in became the substitute foreclosure trustee on August 13, 2009. As such, any claim for rescission is untimely and is barred by the applicable limitations periods. H. PLAINTIFF’S CIVIL RIGHTS CLAIMS FAIL Section 1981 of Title 42 of the U.S. Code prohibits discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. Section 1983 of Title 42 of the U.S. Code also prohibits discrimination by persons acting under “color of law.” See 42 U.S.C. § 1983. Only “persons” may be sued for deprivation of civil rights under Section 1983. See Egan v. City of Aurora, 635 U.S. 514 (1961). Section 1985 of Title 45 of the U.S. Code creates a right of action against private citizens who conspired to deprive others of their civil rights. See 42 U.S.C. § 1985(3). Similarly, Section 241 of Title 18 of the U.S. Code prohibits conspiracy to interfere with any citizen’s exercise of his rights under the U.S. Constitution or laws of the United States. See 18 U.S.C. § 241. Plaintiff’s claims under Sections 1981 and 1983 fail because the Complaint does not allege that NDEX engaged in discrimination. His claim under Section 1983 fails for the additional reason that NDEX is not a “person” and was not acting under “color of law” when it initiated foreclosure proceedings against the Property. His claim under Sections 241 and 1985 should also be dismissed because pursuant to the Deed of Trust, U.S. Bank was entitled to pursue a non-judicial foreclosure in the event that Plaintiff defaulted under the Loan and could bring NDEX in as foreclosure trustee. It therefore follows that Plaintiff’s civil rights causes of action should be dismissed. I. PLAINTIFF’S CONTRACT-BASED CLAIMS FAIL Under California law, the elements of a claim for breach of contract are: (1) the existence of a contract; (2) performance by the plaintiff or excuse for Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 23 of 34 Page ID #:1156 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -15- 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 nonperformance; (3) breach by the defendant; and (4) damages. See First Commercial Mortgage Co. v. Reece, 89 Cal.App.4th 731, 745 (2001). “Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” Levy v. State Farm Mut. Auto. Ins. Co., 150 Cal.App.4th 1, 5 (2007). California law also implies a covenant of good faith and fair dealing in every contract. See Carma Developers (Cal.), Inc. v. Marathon Development California, Inc., 2 Cal. 4th 342, 371 (1992). The covenant is implied “to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenant) frustrates the other party’s rights [to] the benefits of the contract.” Marsu B.V. v. Walt Disney Co., 185 F.3d 932, 938 (9th Cir. 1999) (citing Los Angeles Equestrian Ctr., Inc. v. City of Los Angeles, 17 Cal.App.4th 432, 447 (1993)). Even if construed liberally, Plaintiff’s breach of contract and breach of the implied covenant claims are woefully deficient. Indeed, the Complaint does not identify a contract he had with NDEX; and does not identify a specific provision of any of any contract that NDEX is alleged to have violated, either directly or indirectly. Importantly, Plaintiff fails to establish that he has performed his obligations under the Loan or that he was excused from performing under the Loan. This defect is incurable as Plaintiff indisputably fell behind on his mortgage payments, which ultimately resulted in the loss of his Property to foreclosure. Accordingly, Plaintiff’s claims for breach of contract and breach of the implied covenant should be dismissed. J. PLAINTIFF FAILS TO STATE A CLAIM FOR TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 24 of 34 Page ID #:1157 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -16- 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 (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” Pacific Gas & Electric Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 1126 (1990). The allegations in the Complaint are impermissibly vague and uncertain with respect to nearly all of Plaintiff’s claims. This is especially true with respect to his tortious interference with contractual relations claim. In fact, the Complaint fails to allege a specific contract between Plaintiff and a third party that NDEX purportedly interfered with or how NDEX disrupted the contractual relationship between Plaintiff and a third party. For this reason, this claim should be dismissed. K. PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATIONS OF CALIFORNIA’S DECEPTIVE TRADE PRACTICES LAWS Laws governing deceptive trade practices in California are codified at California Business and Professions Code sections 17220, et seq. California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq., prohibits any unlawful, unfair or fraudulent business act or practice. See Cal. Bus. & Prof. Code § 17200. When analyzing a UCL claim, courts consider each of the three prongs to determine whether a practice is unlawful, unfair, or fraudulent. See Cel-Tech Comms., Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 180 (1999). While the scope of the conduct covered by the UCL is broad, the remedies are limited. See Buckland v. Threshold Enterprises, Ltd., 155 Cal.App.4th 798, 812 (2007). Damages cannot be recovered, and a plaintiff is generally limited to injunctive relief and restitution. See id. 1. Plaintiff’s Claim is Time-Barred Claims under the UCL are governed by a four-year statute of limitations. Cal. Bus. & Prof. Code § 17208. To the extent that Plaintiff’s UCL claim is Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 25 of 34 Page ID #:1158 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -17- 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 premised on his contention that the Deed of Trust, Notice of Default, Assignment, Notice of Default, and foreclosure sale were fraudulent, the claim is time-barred. This is because these documents were recorded in 2005 and 2009, and the foreclosure sale occurred in 2011. However, Plaintiff did not file his Complaint within four years of these events. His claim under the UCL is therefore barred by the applicable limitations period. 2. Plaintiff Lacks Standing Even if his claim is not time-barred, a claim for unfair competition under the UCL may only be brought “by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” Cal. Bus. & Prof. Code § 17204. To establish standing under the UCL, a plaintiff must: (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact (i.e., economic injury); and (2) show that that economic injury was the result of (i.e., caused by) the unfair business practice that is the gravamen of the claim. See Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 337 (2011). There is no causation “when a complaining party would suffer the same harm whether or not a defendant complied with the law.” Daro v. Superior Court, 151 Cal.App.4th 1079, 1099 (2007). Here, Plaintiff lacks standing to assert a claim under the UCL because he has not suffered any economic injury caused by NDEX’s alleged unfair competition. Indeed, Plaintiff fails altogether to specify his alleged economic damages. For this reason alone, this claim should be dismissed. 3. Unlawful, Unfair or Fraudulent Business Practices A violation of another law is a predicate for stating a cause of action under the UCL’s “unlawful” prong. See Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.App.4th 1544, 1554 (2007). A claim for violation of the UCL stands or falls depending on the fate of antecedent substantive causes of action. See Krantz v. Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 26 of 34 Page ID #:1159 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -18- 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 BT Visual Images, 89 Cal.App.4th 164, 178 (2001). “Unfair” conduct has been defined as conduct that “offends an established public policy or…is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Scripps Clinic v. Superior Court, 108 Cal.App.4th 917, 939 (2003) (citation and internal quotations omitted). A UCL claim based on public policy must be “tethered” to a specific constitutional, statutory or regulatory provision to provide an objective basis for determining whether the alleged conduct is unfair. See id. at 940. Finally, to establish liability under the “fraudulent” prong of the UCL, a plaintiff must demonstrate that the offending conduct is likely to deceive members of the public. See Daugherty v. Am. Honda Motor Co., 144 Cal.App.4th 824, 838 (2006). The determination as to whether a business practice is deceptive is based on the likely effect such practice would have on a reasonable consumer. See Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 507 (2003). Claims under the fraudulent prong of the UCL must be pleaded with particularity under Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009). Therefore, a plaintiff “must include a description of the ‘time, place, and specific content of the false representations as well as the parties to the misrepresentations.’” In re Facebook PPC Advertising Litigation, 2010 WL 3341062, at *9 (N.D. Cal. 2010) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007)). Plaintiff’s claim for a violation of the UCL fails simply because he has not pled a viable antecedent claim. As discussed herein, every one of Plaintiff’s claims is legally deficient and fails to constitute a cause of action against NDEX. Absent a viable antecedent claim, Plaintiff cannot state a separate claim under the unlawful prong of the UCL. Nor can he identify any “constitutional, statutory or regulatory provision” to which to relate a claim under the “unfair” Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 27 of 34 Page ID #:1160 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -19- 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 prong. See Scripps Clinic, 108 Cal.App.4th at 940. Finally, Plaintiff has not pled with any degree of specificity any misrepresentations that NDEX is alleged to have made. Nor has he alleged sufficient facts to establish that NDEX’s purported misconduct was likely to deceive members of the public. It follows that Plaintiff’s Complaint contains insufficient facts to state a claim under any of the three prongs of the UCL. L. PLAINTIFF FAILS TO STATE A CLAIM FOR INVASION OF PRIVACY To state a claim for invasion of privacy, a plaintiff must allege: (1) a legally protected private interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of a privacy interest . See Hill v. Nat'l Collegiate Athletic Assn., 7 Cal. 4th 1, 35-37 (1994). Moreover, a plaintiff’s voluntary consent to the defendant’s invasive actions can negate a plaintiffs’ reasonable expectations of privacy, as well as the element of offensiveness, for purposes of the tort of intrusion. Hernandez v. Hillsides, Inc., 47 Cal.4th 272, 293 (2009) (“consent to an impending intrusion can 'inhibit reasonable expectations of privacy'”). Initially there are no specific charging allegations against NDEX in this claim. Secondly, Plaintiff expressly consented to U.S. Bank’s entry onto the Property following his default under the Loan. Specifically, Section 9 of the Deed of Trust authorized U.S. Bank to enter the Property in the event that Plaintiff defaulted under the Loan. (See RJN, Exhibit 1, § 9). Plaintiff’s claim for invasion of privacy is therefore barred by the defense of consent. M. PLAINTIFF FAILS TO STATE A CLAIM FOR TRESPASS Under California law, the elements of a cause of action for trespass are: “(1) the plaintiff’s lawful possession or right to possession, as the owner or otherwise, of described property; (2) the defendant’s wrongful act of trespass on the property; and (3) damage to plaintiff proximately cause by the Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 28 of 34 Page ID #:1161 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -20- 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 trespass.” See McRae v. Blakeley, 3 Cal.App. 171, 174 (1906). Plaintiff fails to allege a viable trespass claim for several reasons. First, he no longer owns nor rightfully possesses the Property. On the contrary, the non-judicial foreclosure sale terminated Plaintiff’s interest in the Property and terminated NDEX’ connection to the Property. Second, Plaintiff consented to U.S. Bank’s entry onto the Property because Section 9 of the Deed of Trust authorized U.S. Bank to enter the Property in the event of Plaintiff’s default. (See RJN, Exhibit 1, § 9). Third, Plaintiff has failed to allege any entry by U.S. Bank, let alone and “unreasonable” one. For all three reasons, the trespass claim should be dismissed. N. PLAINTIFF FAILS TO STATE A CLAIM FOR CIVIL CONSPIRACY The elements of a claim for civil conspiracy under California law are: (1) the formation and operation of the conspiracy; (2) wrongful conduct in furtherance of the conspiracy; and (3) damages arising from the wrongful conduct. See Kidron v Movie Acquisition Corp., 40 Cal.App.4th 1571, 1581 (1995). Further, civil conspiracy, unlike criminal conspiracy, “is not an independent tort.” See Applied Equipment Corp. v. Litton Saudi Arabia. Ltd., 7 Cal.4th 503, 510- 11 (2004). Civil “conspiracy itself is not actionable without a wrong.” Okun v. Superior Court, 29 Cal.3d 442, 454 (1981); Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 510 (1994) (“Conspiracy is not a cause of action”). In Okun, the California Supreme Court dismissed a claim for civil conspiracy where the plaintiff failed to state a claim for any underlying tort. See id., 29 Cal.3d at 454. Just like the plaintiff in Okun, Plaintiff has failed to allege a viable underlying tort. Indeed, the alleged conspiracy appears to be based entirely on the preceding causes of action, none of which is a valid claim. Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 29 of 34 Page ID #:1162 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -21- 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 Absent a viable antecedent tort claim, Plaintiff cannot state a claim for civil conspiracy. O. PLAINTIFF FAILS TO STATE A CLAIM FOR UNJUST ENRICHMENT Under California law, the elements of a claim for unjust enrichment (i.e., quasi contract) are: (1) a defendant’s receipt of a benefit; and (2) unjust retention of that benefit at the plaintiff’s expense. See Peterson v. Cellco P’ship, 164 Cal.App.4th 1583, 1593 (2008). The doctrine applies where a plaintiff who has no enforceable contract confers a benefit on a defendant which the defendant knowingly accepts under circumstances that make it inequitable for the defendant to retain the benefit without paying for its value. See Hernandez v. Lopez, 180 Cal.App.4th 932, 938 (2009). A claim for unjust enrichment does not lie when an enforceable, binding agreement exists defining the rights of the parties. See California Med. Ass’n, Inc. v. Aetna U.S. Healthcare of California, Inc., 94 Cal.App.4th 151, 172 (2001). Applying this authority to Plaintiff’s allegations, it is apparent that his claim fails as a matter of fact and law. To start, there is an enforceable, binding agreement between Plaintiff and U.S. Bank; namely, the Note and Deed of Trust. Plaintiff does not deny that he accepted the Loan funds or that he was required to make mortgage payments. Because a cause for unjust enrichment cannot exist when a binding agreement governs the rights of the parties, Plaintiff’s cause of action necessarily fails. See California Med. Ass’n, 94 Cal.App.4th at 172. P. PLAINTIFF FAILS TO STATE A CLAIM FOR CANCELLATION OF INSTRUMENTS Under California law, “[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 30 of 34 Page ID #:1163 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -22- 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 application, be so adjudged, and ordered to be delivered up or canceled.” Cal. Civ. Code § 3412. “[T]o state a claim pursuant to Civil Code § 3412, [a] plaintiff must allege that he has restored everything of value received from the loan transaction.” Sanchez v. MortgageIt, Inc., 2011 WL 588178, at *2 (N.D. Cal. 2011) (citing Star Pac. Investments, Inc. v. Oro Hills Ranch, Inc., 121 Cal.App.3d 447, 457 (1981)). Although not entirely clear, Plaintiff’s nineteenth cause of action appears to seek the cancellation of the Notice of Default, Assignment and TDUS. To the extent Plaintiff seeks to indirectly cancel U.S. Bank’s interest in the Loan (as NDEX has no interest in the loan), his claim fails as he does not allege that he is able to return the Loan proceeds as a condition of his rescission request. Indeed, the Complaint does not allege that he has tendered or has the ability to tender the full amount due under the Loan. As a consequence, he cannot allege that any of the challenged instruments will cause him harm as they each relate to the Loan that Plaintiff has not repaid. Regardless, the Complaint fails to establish that any of the documents at issue are invalid. On the contrary, as set forth in detail above, the Complaint does not allege sufficient facts to show that any of these documents are fraudulent. NDEX’ involvement, if any, would be to merely record whatever documents is ordered by the Court, if the Court Judgment is insufficient. Based on the foregoing, Plaintiff cannot state a claim for cancellation of instruments. Q. PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE OR DECLARATORY RELIEF “An action for declaratory judgment is procedural in nature and purpose.” Liberty Mut. Ins. Co. v. UPA California, 2009 WL 415656, at *3 (N.D. Cal. 2009). Because a federal court exercising diversity jurisdiction follows Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 31 of 34 Page ID #:1164 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -23- 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 federal procedural rules, “federal law determines the rules to apply to a request for declaratory judgment relief in a given case.” Id. (citations omitted). The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Declaratory relief, however, may be unnecessary where an adequate remedy exists under some other cause of action. See Mangindin v. Wash. Mut. Bank, 637 F.Supp.2d 700, 707 (N.D. Cal. 2009). A claim for declaratory relief “rises or falls with [the] other claims.” See Surf & Sand, LLC v. City of Capitola, 2008 WL 2225684, at * 2, fn. 5 (N.D. Cal. 2008). Similarly, injunctive relief is not a cause of action. See Cox Commc'ns PCS, L.P. v. City of San Marcos, 204 F.Supp.2d 1272, 1283 (S.D.Cal.2002). Instead, it is a remedy that must be tethered to some independent legal duty owed by the defendant to the plaintiff. See id. Plaintiff’s claims for declaratory and injunctive mirror his other claims. As previously discussed, none of those enumerated claims have merit. In the absence of viable antecedent claim, Plaintiff is not entitled to any injunctive or declaratory relief. / / / / / / / / / Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 32 of 34 Page ID #:1165 NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT -24- 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 V. CONCLUSION For the reasons set forth herein, Plaintiff’s Complaint should be dismissed without leave to amend. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP Dated: January 10, 2017 By: /s/ James T. Lee, Esq. JAMES T. LEE Attorneys for Defendant, NDEX WEST, LLC Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 33 of 34 Page ID #:1166 Case 2:16-cv-06068-JFW-JCG Document 54 Filed 01/10/17 Page 34 of 34 Page ID #:1167 [PROPOSED] ORDER -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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DONDI C. STEVENS, Plaintiff, v. U.S. BANK, NATIONAL ASSOCIATION; NDEX WEST, LLC & CHASE FINANCE LLC; METRO CITIES MORTGAGE, LLC; COLDWELL BANKER; & BRUCE VENTURELLI; AND ALL PERSONS CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO AND, DOES 1 THROUGH 10, INCLUSIVE, Defendants. CASE NO. 2:16-CV-06068-JFW-JCG Hon. John F. Walter [PROPOSED] ORDER GRANTING DEFENDANT NDEX WEST, LLC’S MOTION TO DISMISS COMPLAINT Date: February 13, 2017 Time: 1:30 p.m. Ctrm. 7A EDWARD A. TREDER State Bar No. 116307 JAMES T. LEE State Bar No. 110838 BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP 20955 Pathfinder Road, Suite 300 Diamond Bar, California 91765 (626) 915-5714 - Phone (626) 915-0289 - Fax JamesL@BDFGroup.com File No. 6428007 Attorneys for Defendant NDeX West, LLC Case 2:16-cv-06068-JFW-JCG Document 54-1 Filed 01/10/17 Page 1 of 3 Page ID #:1168 [PROPOSED] ORDER -2- 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 TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendant NDEX WEST, LLC (“NDEX”) Motion to Dismiss Complaint of Plaintiff DONDI C. STEVENS (“Plaintiff”) came upon for hearing before this Court. After considering the moving papers, any opposition thereto, if any, and the reply, if any, pleadings, the court file, matters the Court took judicial notice of, and any oral argument as requested by the Court, if any, the Court orders as follows: Plaintiffs Complaint is DISMISSED WITH PREJUDICE as to Defendant NDEX. Judgment shall be entered in favor of NDEX. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _______________________. IT IS SO ORDERED. DATED: ______________ _____________________________ HON. JOHN F. WALTER Case 2:16-cv-06068-JFW-JCG Document 54-1 Filed 01/10/17 Page 2 of 3 Page ID #:1169 Case 2:16-cv-06068-JFW-JCG Document 54-1 Filed 01/10/17 Page 3 of 3 Page ID #:1170
