Parvin Lopresti v. Fay Servicing, Llc et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.September 16, 2016

CASSANDRA E. HOOKS (SBN 244471) ALSTON & BIRD LLP 333 South Hope Street, 16th Floor Los Angeles, CA 90071-1410 Telephone: 213-576-1000 Facsimile: 213-576-1100 E-mail: cassandra.hooks@alston.com Attorney for Defendant FAY SERVICING, LLC PARVIN LOPRESTI, Plaintiff, v. FAY SERVICING, LLC; THE BANK OF NEW YORK MELLON CORPORATION f/k/a THE BANK OF NEW YORK AS TRUSTEE FOR CWALT ALTERNATIVE LOAN TRUST 2007-0A2; BANK OF AMERICA, N.A.; and DOES 1 THROUGH 100, inclusive, Defendants. Case No.: 2:16-cv-01222-PSG-GJS [Assigned to the Honorable Philip S. Gutierrez] DEFENDANT FAY SERVICING, LLC'S AMENDED NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES [Filed Concurrently with Request for Judicial Notice; and [Proposed] Order.] Date: November 14, 2016 Time: 1:30 p.m. Ctrm: 880 Complaint Filed: December 29, 2015 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 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 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ , : - cassa r . 7-O 2: - - ’ l i t Filed: Dece ber , Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 1 of 18 Page ID #:984 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 PLAINTIFF, COUNSEL OF RECORD AND THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: PLEASE TAKE NOTICE that on November 14, 2016, at 1:30 p.m. or as soon thereafter as this matter may be heard in Courtroom 880 of the United States District Court for the Central District of California (Western Division - Los Angeles), located at 255 E. Temple Street, Los Angeles, California 90012-3332, Defendant Fay Servicing, LLC ("Fay Servicing") will move this Court for an Order pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the Complaint of Plaintiff Parvin LoPresti, with prejudice and without leave to amend further. The Motion is made on the following grounds: 1. The first claim for Intentional Infliction of Emotional Distress fails because Plaintiff has not alleged facts sufficient to constitute a cause of action against Fay Servicing. 2. The second claim for Slander of Title fails because Plaintiff has not alleged facts sufficient to constitute a cause of action against Fay Servicing. 3. The third claim for Civil Conspiracy fails because Plaintiff has not alleged facts sufficient to constitute a cause of action against Fay Servicing. On April 5, 2016, Fay Servicing's counsel participated in a conference of counsel as required by Local Rule 7-3 with Plaintiff's counsel. The parties engaged in settlement negotiations, but failed to reach an agreement. DATED: September 16, 2016 CASSANDRA E. HOOKS ALSTON & BIRD LLP /S/ CASSANDRA E. HOOKS CASSANDRA E. HOOKS ATTORNEY FOR DEFENDANT FAY SERVICING, LLC 1 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ IFF, UNSEL OF ORD ND E I t t r , , t . tr l istrict of California ( estern Division - 25 E. Temple Str et, Los Angeles, California 9 012-33 Def t icing, LC (“ ay rvicing”) il ove this urt r t . f clai for Intentio Infli of Emoti i f i i r f i be iff t cl f Civil Cons b tiff 20 Fa Servi ’ co p ted co e l le 7-3 ith Plaintif ’ s l. : ber 16, 2016 CA SANDRA E. Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 2 of 18 Page ID #:985 TABLE OF CONTENTS I. Introduction 1 II. Factual Background 1 A. The Loan 1 B. Chain of Title, Fay Servicing, and Plaintiff's Default 2 C. The California Action 2 D. Plaintiff's Three Remaining Claims 3 III. Legal Standard on Motion to Dismiss 3 IV. Argument 4 A. Plaintiff's Boilerplate Complaint Fails to Comply with Rule 8(a) 4 B. Res Judicata Bars Plaintiff's Claims based on the California Action 5 C. Collateral Estoppel Also Bars Plaintiff's Claims 7 D. Plaintiff's Claim for Intentional Infliction of Emotional Distress Must be Dismissed 8 E. Plaintiff's Claim Slander of Title Must be Dismissed 9 F. Plaintiff's Claim of Civil Conspiracy Must be Dismissed 10 G. Plaintiff Should Not be Granted Leave to Amend Further 10 V. Conclusion 12 i 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 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ .......................................................................................................... .............................................................................................. .................................................................................................... , l i tiff’ ............................... ................................................................................ ’ .......................................................... Legal Standard on Motion to is .................................................................. . Argume .............................................................................................................. ’ il l t ............ Judi rs tif ’s s the Califor ......................................................................................................... l i tiff’ ....................................... tiff’ f Inte ti I f E ti i ..................................................................................... ’ l i ............................... ’ l i ...................... . ...................... . Conclusio .......................................................................................................... Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 3 of 18 Page ID #:986 1 TABLE OF AUTHORITIES 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 Page(s) FEDERAL CASES Aguinaldo v. Ocwen Loan Servicing, LLC, No. 5:12-CV-01393-EJD, 2012 WL 3835080 (N.D. Cal. Sept. 4, 2012) 8 Ashcroft v. Iqbal, 556 U.S. 662 (2009) 3, 4 Assoc 'd Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, Inc., 459 U.S. 519 (1983) 4 Bala v. Bank of Am., NA., Case No. CV 15-3305, 2015 WL 4886043 (C.D. Cal. Aug. 14, 2015) 7, 8 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 3 Davenport v. Litton Loan Servicing, LP, 725 F. Supp. 2d 862 (N.D. Cal. 2010) 8 In re Cedano, 470 B.R. 522 (B.A.P. 9th Cir. 2012) 9, 10 In re Lui, No. 14-60025, 2016 WL 1212113 (9th Cir. Mar. 29, 2016) 4 Javaheri v. JPMorgan Chase Bank, NC., No. CV10-08185 ODW, 2011 WL 2173786 (C.D. Cal. June 2, 2011) 8 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) 4 North Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578 (9th Cir. 1983) 4 Palomar Mobilehome Park Ass 'n v. City of Marcos, 989 F.2d 362 (9th Cir. 1993) 6, 7 Pannabecker v. U.S. Bank N.A., 746 F. Supp. 2d 1160 (E.D. Cal. 2010) (Wright, J.) 12 ii DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ .......................................................................................................................... ............................................................................................... ’ . t t f l., . . ................................................................................................... f ., N. ................ ................................................................................................... ....................................................................... ................................................................... ..................................... ase ank, N. .................... ..................................................................................... ’ ’ ..................................................................................... ’ ................................................................................. ............................................... Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 4 of 18 Page ID #:987 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 Petrovich v. Ocwen Loan Servicing, LLC, No. C-15-0033 EMC, 2015 WL 3561821 (N.D. Cal. June 8, 2015) 10 Reyes v. Nationstar Mortgage LLC, No. 15-CV-01109-LHK, 2015 WL 4554377 (N.D. Cal. July 28, 2015) 8 Sarkar v. World Savings FSB, No. 13-4375, 2014 WL 457901 (N.D. Cal. Jan. 31, 2014) 5 Schereiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986) 4 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) 4 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064 (9th Cir. 2003) 6 STATE CASES Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503 (Cal. 1994) 10 Boeken v. Philip Morris USA, Inc., 48 Ca1.4th 778 (2010) 6 Brinton v. Bankers Pension Servs. Inc., 76 Cal. App. 4th 550 (1999) 6 Doan v. State Farm Gen. Ins. Co., 195 Cal. App. 4th 1082 (2011) 11 Ross v. Creel Printing & Publishing Co., 100 Cal. App. 4th 736 (2002) 8 Singh v. Lipworth, 227 Cal. App. 4th 813 (2014) 11 Torres v. City of Yorba Linda, 13 Cal. App. 4th 1035 (1993) 11 Yu v. Signet Bank/Virginia, 69 Cal. App. 4th 1377 (1999) 9 iii DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ ...................... .................. ....................................... ................................................................................... ..................................................................................... ................................................................................... ....................................................................................... l. t ................................................................................................ ...................................................................................... ................................................................................ .................................................................................... .................................................................................. .................................................................................. .................................................................................... Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 5 of 18 Page ID #:988 RULES Rule 8 4 Rule 8(a) 4, 5 OTHER AUTHORITIES Lee v. JPMorgan Chase Bank, NA., Case No. 2:15-cv-04061- 6 iv 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 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ .............................................................................................................................. ...................................................................................................................... se ank, N. ........................................................................................... Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 6 of 18 Page ID #:989 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 delinquent borrower that has been living for free in a multimillion dollar house for the past eight years. While the owners of Plaintiff's mortgage loan pay the taxes and insurance on the property at issue, Plaintiff continues to reside in one of the most desirable neighborhoods in the world, without concern that she is accruing several million dollars in debt. Instead of surrendering the property when she was no longer able to afford it, Plaintiff brought multiple lawsuits across multiple jurisdictions. In a prior action, Plaintiff asserted that her multimillion-dollar debt should be simply wiped away because the deed of trust securing her loan was invalid. That action was dismissed with prejudice. Having initially brought eight claims in her first Complaint, this Court dismissed five of those as against Fay Servicing, LLC ("Fay") with prejudice, while the Court dismissed the remaining three claims without prejudice, granting Plaintiff the opportunity to replead. Plaintiff now acknowledges in her First Amended Complaint that there were proper assignments between the Defendants, but claims that she had no actual notice of them, despite having constructive notice from the recorded documents. Plaintiff still fails to allege any wrongdoing by Fay in the servicing of the loan and acknowledges that Fay is no longer the servicer of the loan. Accordingly the Complaint should be dismissed with prejudice. II. FACTUAL BACKGROUND A. The Loan In November 2006, Plaintiff obtained a mortgage loan from non-party Countrywide Home Loans, Inc. ("CHL") in the amount of $3,415,000 (the "Loan") in order to purchase a property located at 1466 San Reno Drive, Pacific Palisades, California (the "Property"). (First Am. Compl. ("FAC") ¶ 8.) To secure the Loan, 1 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ t t rs. hil the o l i ’s rt t i t r i l t t desir ds i , t rn t i t rty en s tiff ght ultiple la suits acros multiple jurisdictions. r a ti i tif rted t i n-dol ar debt ould a i r lid. That acti a dis ing itial y rought eight laims in first Com t, t Co “ ” r i r l it r j tunity to l ad. Plaintiff now ackno l s her First Amen Plaintiff still fails t alle a t i l r t s r icer f the loan. No er , l tiff ined mort lo fro non-par , “ ” “ ” r p pr l 146 San Reno Drive, Pacific Palisa if rnia (the “ roperty”). (First Am. Compl. (“FAC”) ¶ 8.) s t Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 7 of 18 Page ID #:990 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 Plaintiff granted Countrywide Home Loans, Inc. a security interest in the Property (the "Deed of Trust"). (Request for Judicial Notice ("RJN") Ex. 1.) B. Chain of Title, Fay Servicing, and Plaintiff's Default In April 2011, CHL, acting through its nominee, non-party Mortgage Electronic Registration Systems, Inc. ("MERS"), assigned its interest in the Deed of Trust to Defendant Bank of America, N.A. ("BANA"), successor by merger to BAC Home Loans Servicing LP, formerly known as Countrywide Home Loans Servicing, LP. ("BAC") (FAC ¶ 9.) In May 2014, BANA assigned its interest in the Deed of Trust to non-party U.S. Bank National Association, as trustee for PROF-2013-53 REMIC Trust III (the "Trust"). (FAC ¶ 11; RJN Ex. 3.). Plaintiff fails to allege in her Amended Complaint that she is current on her mortgage loan. Plaintiff does not describe when Fay became the servicer of her loan, simply stating that "At all times material hereto, FAY was the servicer of the Loan." (FAC ¶ 18.) C. The California Action In July 2005, Plaintiff sued Defendants BANA and Fay Servicing, as well as MERS, the Trust, and non-party Clear Recon Corp. in the Superior Court of the State of California for the County of Los Angeles (the "California Action"). (RJN Ex. 4, at 1.) In the California Action, Plaintiff alleged, among other things, that BANA and Fay Servicing attempted to wrongfully foreclose against the Property and that they "never possessed the beneficial interest in Plaintiffs' Deed of Trust." (Id. at 30-31.) In July 2015, the court entered an order of dismissal with prejudice in the California Action, without leave to amend. (RJN Ex. 6, at 2.) After the dismissal order was entered in Plaintiff's California Action, Plaintiff commenced the instant action. Plaintiff filed the Complaint on December 29, 2015 in the United States District Court for the Southern District of New York. On February 10, 2016, Judge Kaplan transferred the action to this Court, stating that "Plaintiffs do not dispute that this action might have been brought in the Central District of California or that the convenience of parties and witnesses and that interest of justice 2 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ “ ” “ ” ’ i tration ystems, Inc. (“ ERS”), as igned its interest in the ed t nt , . “ ”), s r r i “ ” In ay 2014, assi it i t rty . . i , tr for PROF-2 S R st II t e “ rust”). ( . . Plaintif fai t all i h nded omplaint that she is ur ent on er rtgage loan. Pl i r “ t s r icer of the Loan.” t , t f s eles (the “ alifornia ction”). In the California Action, Plaintiff a lege , a t t t ll l se inst t rty “ t i l i tiffs’ ” , r f dis i it pr j i th Calif ’ li t ti . l i tif fil t i t rt r t t ern istrict of e ork. “ t te t a t t t Ce t Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 8 of 18 Page ID #:991 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 would be served thereby." (Dkt. 19.) Fay filed a Motion to Dismiss, which the Court granted with prejudice as to five of Plaintiff's original claims, and without prejudice as to the three remaining claims. (Dkt. 59.) D. Plaintiff's Three Remaining Claims Plaintiff filed an "Amended Complaint" on August 19, 2016 against Defendants Fay, the Bank of New York Mellon Corp. f/k/a the Bank of New York, as Trustee for PROF 2013-S3-REMIC Trust III ("Trust"), Bank of America NA ("BANA") (despite the claims against BANA being previously dismissed by this Court with prejudice) and Does 1 through 100 inclusive. (Dkt. 60.) Plaintiff then filed a new "First Amended Complaint" ("FAC") on August 29, 2016, which kept all of the same factual allegations against the three original defendants but dropped the Trust and BANA in name only from her claims. (Dkt. 62.) Plaintiff asserts her three remaining claims in the FAC. In Count I, Plaintiff asserts a claim for intentional infliction of emotional distress arising out of Fay's alleged wrongful foreclosure on the Property. In Count II, Plaintiff asserts a claim for slander of title, allegedly arising out of Fay's publishing the Notice of Default and related documents. In Count III, Plaintiff alleges a civil conspiracy. Each of these claims fail. III. LEGAL STANDARD ON MOTION TO DISMISS The Supreme Court has held that the factual allegations of a complaint must be "enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must plead more than conclusory allegations to show "plausible liability" and avoid dismissal. Id. at 1966 n.5. This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" as well-pled factual allegations. Id. 3 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ t r .” ( Fay filed a otion to is i , i ’ ori i l cl i it r i i clai s. ’ “ ” t “ ” “ ” i pr j es gh 00 inclusive. t. .) Plainti t fi ne “Fi ” “ ” t ts t r l i s. ( Plainti f asserts her three re i In Count I, Plainti f a serts a claim for intentional inflicti f e i t f ’ l r closure on the roperty. , l ri i t f ’ lt t ents. I III, Pl i . f t LEGAL STANDARD ON MOTION “ ri t reli a t s ” (2 plai ti ple r than concl ti ns “ ” a dis “ ” “ ” . ( . , “ r adbare recitals of the le ents of t , ” Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 9 of 18 Page ID #:992 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 Dismissal is proper where, as here, there is an absence of sufficient facts alleged to support a cognizable legal theory and where, as here, a complaint is vague, conclusory, general, or fails to set forth any material facts in support of the allegation. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); North Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 583 (9th Cir. 1983). The plaintiff bears the burden of pleading sufficient facts to state a claim. The court is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Nor do courts assume the truth of legal conclusions merely because they are couched as factual allegations. Ashcroft, 556 U.S. at 678-79; Assoc'd Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, Inc., 459 U.S. 519, 526 (1983). Finally, where "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficienc[ies]" in a complaint, leave to amend may properly be denied. Schereiber Distrib. Co. v. Serv- Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). IV. ARGUMENT A. Plaintiff's Boilerplate Complaint Fails to Comply with Rule 8(a) Federal Rule of Civil Procedure 8(a) mandates that the Plaintiff file a complaint that contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8 requires that "the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." In re Lui, No. 14- 60025, 2016 WL 1212113, at *1 (9th Cir. Mar. 29, 2016) (quotation omitted). Courts will "ignore conclusory factual or legal statements and look only to the specific facts alleged." Id. Plaintiff's Complaint fails to assert a plausible claim for relief because in her attempt to pare down her original Complaint to adhere to the Court's Order Granting Motion to Dismiss on claims relating to both Fay and BANA, Plaintiff is left with a barebones complaint that makes no factual sense. First, she has clearly copied and 4 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ s t co le l ry re, a co l i vag ’ . i ’ t ar merely conclus un ted ctions f fa or unreasonabl le c l ’ l. “ t t chal ed ding uld t ibly re def c[ies]” in l i t, r t i . . . ARGUME ’ i s “ t .” Rule 8 requires that “the complai t’s factual a legati , t r s, t l ” “ ” tiff’ i t l l i t r ’ ti f es plaint that akes no factual sense. cl Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 10 of 18 Page ID #:993 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 pasted from her original complaint, thereby incorporating some of the original pagination. (FAC ¶ 44 (". . . Plaintiff will incur additional charges for such purpose until the cloud on Plaintiff's title to the Case 1:15-cv-10092 Document 1 Filed 12/29/15 Page 12 of 22 Page 13 of 22 [sic] property has been removed.").) Moreover, she has failed to correct the pleading inconsistencies from her original Complaint, such as asserting that unnamed defendants "aided and abetted in the civil conspiracy to 'churn' or put Plaintiff in a series of loans," while the Complaint only alleges that non-party CHL made a single loan to Plaintiff. (FAC TT 6, 8.) Finally, Plaintiff alleges that Defendant acted "with the malicious intent to injure Plaintiff and deprive him of his exclusive right, title, and interest in the Property"-but Plaintiff is a woman. (FAC ¶ 46 (emphasis added).) All of these examples, however, pale in comparison when one considers that Plaintiff has also failed to account for the fact that, while she admits Fay was just the servicer on the loan, she now makes all sorts of inconsistent allegations relating to the origination, table funding, and securitization of the loan, in which Fay took no part. (See e.g., FAC ¶ 26 ("Defendant violated RESPA rules by failing to disclose the use of table funding for Plaintiffs loan, the source of funds used on Plaintiffs loan, and the commission and fees earned by Countrywide and others relating to the use of the table funded loan.").) Fay, as the servicer of the Loan, has never claimed an ownership interest in the Property. (FAC ¶ 18.) Nevertheless, Plaintiff's boilerplate allegations assert that "Defendant does not hold a perfected and secured claim in the Property ." Compl. ¶ 60. Accordingly, Plaintiff's Complaint should be dismissed for failure to comply with Federal Rule of Civil Procedure 8(a). See Sarkar v. World Savings FSB, No. 13-4375, 2014 WL 457901, at *3-4 (N.D. Cal. Jan. 31, 2014) (dismissing boilerplate complaint for failure to comply with Rule 8(a)). B. Res Judicata Bars Plaintiff's Claims based on the California Action Even if the Complaint contained well-plead allegations, it would still be barred by res judicata. "The doctrine of res judicata provides that a final judgment on the 5 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ ted origi co t, t i rating so e f t origi ti . (F ¶ 44 (“. . . Plainti f wi l incur additional char f s til cl o Plai ’ title to the Case 1:15-cv-10 t Fil i ] r rt as een re oved.”).) fail to co rect the pleading inconsist fr her origi l Co l “ ‘ch r ’ or put Plaintiff in a series of loans,” while the Co l i - arty HL ade a single loan to laintif . ( ¶¶ 6, .) Finall , Plai “ l sive right, title, st t Pr ” ut intif is (F ( t e c ti , t le ing, d ritization of t e l , i “ d n.”).) Fay, as the servicer of the Loan, has never clai e an owner t rty. ( . Nevertheless, Plaintiff’s boilerplate all “ t i t ” l. A cordingly, Plai ti ’s Co l s i ). See r . . 5, 4 1, * ( . C l Jan. 31, 2014) (dismissi ’ , j “ i s t j t Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 11 of 18 Page ID #:994 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 merits bars further claims by parties or their privies based on the same cause of action . . . . [T]his doctrine is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdiction." Tahoe- Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (quotation omitted). Res judicata applies to bar a subsequent action when "(1) [a] claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits, and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding." Brinton v. Bankers Pension Servs. Inc., 76 Cal. App. 4th 550, 556 (1999); see Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003); Boeken v. Philip Morris USA, Inc., 48 Ca1.4th 778, 797 (2010). First, with respect to the identity of claims, California courts apply the "primary rights" theory, "'under which the invasion of one primary right gives rise to a single cause of action.'" Lee v. JPMorgan Chase Bank, NA., Case No. 2:15-cv-04061- CAS(GJSx), 2015 WL 5554006, at *4 (C.D. Cal. Sept. 21, 2015) (quoting Slater v. Blackwood, 15 Cal. 3d 791, 795 (1975)). "California, as most states, recognizes that the doctrine of res judicata will bar not only claims actually litigated in a prior proceeding, but also claims that could have been litigated," so as to avoid creative lawyering to bring the same claim in substance, if not in name. Palomar Mobilehome Park Ass 'n v. City of Marcos, 989 F.2d 362, 364 (9th Cir. 1993); see also Lee, 2015 WL 5554006, at *4 (holding that claims in separate lawsuits involving "the same property and the same allegedly defective foreclosure process . . . seek redress for the same primary right - title to the Subject Property based on alleged defects in the foreclosure process"). Here, the relevant "primary right" is Plaintiff's right against the enforcement of the Deed of Trust and the foreclosure on the Property. In the California Action, 6 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ . . . [T]his doctrine is central to the purpose for which civil court ha be lished, i e l tion t j ri ” ta lies t s t i n “ ) i ised nt tion is tical to is li ted pri ” th ( rra s. cil, I c. . ’ l l.4th , “ ” , “‘ i se .’” J se k, . . 2:15- J ), 5 6, t ( . “California, as ost state , re i e j t l onl clai a ted i pri ing, t l i s t l t ,” t a i cre ’ , (h l t cl i i separ t la i “ s - title to the ject r perty ased d cts ” “ ” ’ t for re rty. In the Californi Acti Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 12 of 18 Page ID #:995 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 Plaintiff asserted a claim for wrongful foreclosure, alleging that "Defendants had no authority to . . . foreclose on the Subject Property." See RJN Ex. 4, at 30. Plaintiff asserts the identical claim in the instant action relating to the same property, alleging, "The actions of Defendant, as set forth herein, have resulted in the Plaintiff being wrongfully foreclosed resulted in the illegal sale of the property on August 15, 2014." (FAC ¶ 31.) Plaintiff could have asserted in the California Action all of the derivative theories now put forth concerning Fay's right to foreclose on the Property and the validity of the Deed of Trust. Second, the California Action resulted in a final judgment on the merits. Plaintiff opposed Defendant Bank of America's demurrer motion, arguing that Defendants did not have a right to foreclose on the Property. See RJN Ex. 5, at 9-10. The court in the California Action entered a judgment dismissing the wrongful foreclosure with prejudice against Defendant Bank of America. See RJN Ex. 6, at 2. A judgment granted upon sustaining a demurrer is considered a final judgment on the merits under California law. See Palomar Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d 362, 364 (9th Cir. 1993). Finally, Plaintiff and Fay were both parties to the California Action. Accordingly, Plaintiff's FAC is barred by res judicata under California law and should be dismissed with prejudice. C. Collateral Estoppel Also Bars Plaintiff's Claims The doctrine of collateral estoppel also bars Plaintiff's claims. Collateral estoppel, also known as issue preclusion, applies to prevent "relitigation of issues actually litigated and necessarily decided, after a full and fair opportunity for litigation, in a prior proceeding." Bala v. Bank of Am., NA., Case No. CV 15-3305, 2015 WL 4886043, at *8 (C.D. Cal. Aug. 14, 2015) (quoting Kourtis v. Cameron, 419 F.3d 989, 994 (9th Cir. 2005)). The issue of Fay's right to foreclose against Plaintiff was necessarily decided against Plaintiff in the California action. See id. Under both federal and California law, collateral estoppel will apply to preclude a new proceeding 7 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ “ it . f r t ” . , t . Pl i “ t, f r t Plai .” Plaintiff could have assert i t lif i i s t r ing ay’ t nd, t e lifornia ction resulted in j nt t meri intif osed fendant ank f a’ de r , a t i the Californi Actio enter a judgment dismis th wron . r ilehome Park As ’n . al y, laintiff and ay re b par to the California Actio rdingly, Plaintiff’s C is ju i r rnia ’ ine ral t ppel also rs intif ’s i s. Co late el, l i r , r “r i t al y itigated and ces arily decided, after a ll fair opport f , ” . f ., . i . )). i ’s right to forecl Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 13 of 18 Page ID #:996 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 on the issue where: "(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding.'" Id. (quoting Hydranautics v. Film Tec. Corp., 204 F.3d 880, 885 (9th Cir. 2000)). Here, these factors all weigh in favor of finding Plaintiff's claims in the present case collaterally estopped by the issues raised in the California Action. The court in the California Action has already entered a final judgment on the merits by sustaining the demurrer determining that the nonjudicial foreclosure of the Property was proper based upon the Deed of Trust and its later assignments, which the court found valid and enforceable. The third element is also satisfied by Plaintiff's prosecution of both the California and the present actions. The California court's judgment precludes Plaintiff from reasserting the same issues in the present action that have already been decided against her. Fay therefore respectfully requests that the Court find Plaintiff's claims precluded by collateral estoppel and dismiss the FAC with prejudice. D. Plaintiff's Claim for Intentional Infliction of Emotional Distress Must be Dismissed In Count I, Plaintiff alleges that Defendants' allegedly "wrongful foreclosure" of the Property was "outrageous and extreme" and "exceed[ed] all bounds which are usually tolerated in a civilized community." (FAC ¶ 34.) Plaintiff's claim fails because California courts routinely dismiss claims for intentional infliction of emotional distress arising out of foreclosures. See, e.g., Reyes v. Nationstar Mortgage LLC, No. 15-CV-01109-LHK, 2015 WL 4554377, at *9 (N.D. Cal. July 28, 2015); Aguinaldo v. Ocwen Loan Servicing, LLC, No. 5:12-CV-01393-EJD, 2012 WL 3835080, at *7 (N.D. Cal. Sept. 4, 2012); Javaheri v. JPMorgan Chase Bank, NC., No. CV10-08185 ODW (FFMx), 2011 WL 2173786, at *7 (C.D. Cal. June 2, 2011); Davenport v. Litton Loan Servicing, LP, 725 F. Supp. 2d 862, 884 (N.D. Cal. 2010); Ross v. Creel Printing & Publishing Co., 100 Cal. App. 4th 736, 745 (2002) (holding 8 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ “‘(1) the i sue nece sarily deci at the previ r i l s t b reliti ( t first proc it t t t ir t r eeding.’” ti ’ r ll st pped by the issues raised in the alifornia Action. it lat assi l . t ir el i l ’ r ia t s. The California court’s judgment precl t . Fay theref r r tiff’ i tif ’s i Inte l I Emoti Distr l ’ all “ ” “ ” “ l y t lerated in a ivilized community.” (FAC ¶ 4.) Plaint ’ clai f i use lifornia urts tinely is is l i s int al i tion - K, 2015 L 54377, at . . . inaldo . L Servi i LL , 5:1 - 3-EJD, , i . r an ase ank, . ), , t Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 14 of 18 Page ID #:997 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 that "attempted collection of a debt by its very nature often causes the debtor to suffer emotional distress"); Yu v. Signet Bank/Virginia, 69 Cal. App. 4th 1377, 1398 (1999) ("An assertion of legal rights in pursuit of one's own economic interest does not qualify as 'outrageous' under this standard."). Plaintiff has made no changes to her claim for intentional infliction of emotional distress in the Amended Complaint, copying almost verbatim from her original Complaint. The only material change was to add a paragraph saying, "The subject loan was yet again purportedly transferred on or about July 13, 2016 from Fay Servicing, LLC to BSI Financial Services. Plaintiff contends that Defendant is still liable for the conduct alleged in this operative Complaint." (FAC ¶ 39.) While perhaps a useful update to the history of Plaintiff's Loan, this paragraph fails to allege any wrongdoing by Fay by transferring the servicing of the Loan and thereby adds no further factual support for her argument that Fay's conduct was "outrageous and extreme." Further, Plaintiff already litigated her claim that the foreclosure was wrongful in the California Action, and lost. E. Plaintiff's Claim Slander of Title Must be Dismissed In Count II, Plaintiff asserts that Fay slandered her title in the Property by publishing the Notice of Default, Notice of Trustee's sale, Trustee's Deed, and other documents evidencing judicial foreclosure. (FAC ¶ 41.) "Slander of title is a `tortious injury to property resulting from unprivileged, false, malicious publication of disparaging statements regarding the title to property owned by plaintiff, to plaintiff's damage."' In re Cedano, 470 B.R. 522, 533 (B.A.P. 9th Cir. 2012) (quoting Southcott v. Pioneer Title Co., 203 Cal. App. 2d 673, 676 (1962)). "To establish a claim for slander of title, a plaintiff must establish: (1) publication, (2) absence of justification, (3) falsity, and (4) direct pecuniary loss." Id. As an initial matter, Plaintiff never affirmatively alleges that Fay published any of the offending documents. (FAC I 10, 12-13.) In addition, Plaintiff's slander of title claims fails because the allegedly slanderous documents were not false, as 9 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ “ ” ; “ tion f l ts t ’s own econ i ‘ ’ ” intif as de c es her clai for intentio infl n ti nal i tress t, i t ti l plaint. o l t par “ i i g, t ial r ices. Plai t le r uct l eged in this perative Complaint.” (FAC ¶ 39.) i ’ t er tual port r nt t ’ con “outr tre e.” Further Plai alr li cl t the forecl ’ l ts t red r l t Pr ti lt, tice f r stee’ ’ j i i l f reclosure. “ ti is a ‘tortious injury to property resultin fro unprivil ti i ts r ing t tiff, t l intiff’ e.’” ( tt 2) . “ o t blish a i r tit a plainti esta : ” ding documents. (FAC ¶¶ 10, 12- . In a dition, Plai ’ sl be t a le sl us ents ere t , Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 15 of 18 Page ID #:998 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 asserted in Plaintiff's unavailing prior claims that Defendants did not have a right to foreclose against the Property. This warrants dismissal. See In re Cedano, 470 B.R. at 533 (dismissing slander claim that relied up plaintiff's other failed claims that defendants did not have the right to foreclose). Further, California law "provides a privilege for publications that serve as communications between interested parties." Petrovich v. Ocwen Loan Servicing, LLC, No. C-15-0033 EMC, 2015 WL 3561821, at *5 (N.D. Cal. June 8, 2015) (citing Kachlon v. Markowitz, 168 Cal.App.4th 316, 336 (2008)). "[N]onjudicial foreclosure notices . . . are privileged absent a showing of malice . . . i.e. neither motived by hatred of ill will nor without a reasonable basis in fact." Id. (citing Cal. Civ. Code § 2924(a)). The Notice of Default, Notice of Trustee's sale, and other documents evidencing the commencement of a judicial foreclosure are indisputably communications between interested parties and are privileged. See id. Plaintiff fails to allege that Plaintiff's acted with malice as required to defeat the privilege, and therefore, as in Petrovich, her slander of title claim must be dismissed. F. Plaintiff's Claim of Civil Conspiracy Must be Dismissed In Count III, Plaintiff asserts a civil conspiracy. However, because civil conspiracy is not an independent tort, and Plaintiff's other causes of action fail, Count III must be dismissed as well. See Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-11 (Cal. 1994) ("Standing alone, a conspiracy does no harm and engenders no tort liability."). As with the other claims, Plaintiff has provided no additional factual support in the FAC to bolster this claim. Plaintiff's third claim should therefore be dismissed with prejudice. G. Plaintiff Should Not be Granted Leave to Amend Further Plaintiff's Complaint should be dismissed for all of the reasons set forth above, with prejudice and without leave to amend a second time. It is well-settled that, "where the nature of the plaintiff's claim is clear, and under substantive law no 10 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ ’ ts i t i st t rty. i rr (di er l i t i iff’ f l t t er, lifornia la “ vides l e tions at ications t een t d ” ich Lo Servici , )). “[ ] j i i es . . are pri i t ing of alice . . ” e ice Def t, o Trust ’ sale, and other document idencing the c encement of judicial foreclos are indisputabl i t ’ re t def t pri i ’ t I Pl f ts ci i con y. However, beca ci ti ’ “ , nders no t rt ility.”). s with the other clai s, Plai t pr itional factual support in the FAC to olster this claim. l ’ t i cl ’ ice d t out l ave t d s is we l-sett t “ re t plai ’ cl i clear, and under subst Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 16 of 18 Page ID #:999 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 liability exists, a court should deny leave to amend because no amendment could change the result." Doan v. State Farm Gen. Ins. Co., 195 Cal. App. 4th 1082, 1091 (2011) (citing City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal. App. 4th 445, 459 (1998)). Otherwise stated: "leave to amend may be denied where permitting an amendment would be futile." Singh v. Lipworth, 227 Cal. App. 4th 813, 828 (2014). The burden of proving a reasonable possibility that defects in the complaint could be cured by amendment falls on the plaintiff. See Torres v. City of Yorba Linda, 13 Cal. App. 4th 1035, 1041 (1993). As unfortunate as foreclosure may be, borrowers like Plaintiff should not be permitted to retain multi-million dollar properties in one of the most desirable neighborhoods in the world with millions of dollars in debt outstanding without attempting to pay back one cent for over five years, and then file barebones and conclusory complaints designed to delay foreclosure. Here, Plaintiff has already been given a second chance to amend her Complaint to fix her pleading failures. Plaintiff has still failed to allege any wrongdoing by Fay in the servicing of her Loan and instead adds in non sequitur arguments based on outdated case law and vague allegations of improper table funding. Fay, as the servicer of Plaintiff's Loan for a time, had no involvement with the origination or funding of her Loan. Leave to amend would be futile as Plaintiffs cannot plead any facts to state a claim against Fay Servicing and there are no facts that Plaintiff could truthfully allege to cure these defects. Plaintiff lacks standing to assert breaches of the PSA and Fay Servicing does not claim an ownership interest in the property. Further, the statute of limitations bars Plaintiff's fraud claims and Plaintiff lacks standing to assert purported breach of federal tax laws. Plaintiff should not receive leave to amend because the myriad defects in the pleading cannot be cured. As such, this Court should grant Fay's Motion to Dismiss without leave to amend. 11 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ ility ists, l t a e beca no amen c ” ( : “ t l ” i l i t l t l t re rs f l it ed t i i- il ion dol ar properties in ne t most desira borho ds in t e l s doll in debt outstandi wit pting to y t fi y a th file bare . Plaintiff has still fail t all t s a inst a i non sequit arg t ated case la d ue llegations of i proper table funding. , t i er tiff’ ti , ha no involve t ori i i . Leave to a en o l be futil as Plai ti t . lai tiff l t t i rs i i terest in the property. li ’ l l rt r orted breach of federal tax la s. Plai s r d ause the yriad defects in the leading can ot be cured. s t ’ i Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 17 of 18 Page ID #:1000 V. CONCLUSION For the foregoing reasons, Fay respectfully requests that this Court grant its Motion to Dismiss in its entirety, without leave to amend a second time. Where, as here, it is clear the Complaint's deficiencies cannot be cured and further amendment would be futile, leave to amend should be denied. See, e.g., Pannabecker v. U.S. Bank NA., 746 F. Supp. 2d 1160, 1182 (E.D. Cal. 2010) (Wright, J.) (dismissing mortgagors' claims without leave to amend for deficiencies that cannot be cured). DATED: September 16, 2016 CASSANDRA E. HOOKS ALSTON & BIRD LLP /S/ CASSANDRA E. HOOKS CASSANDRA E. HOOKS ATTORNEYS FOR DEFENDANT FAY SERVICING, LLC 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 DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36626084v1 , ’ ’ . CONCLUSIO f r , lly ests t at i t t l t ’s defici i c r a f rt a . Sup 2d 160, 182 (E.D. Cal. 2010) (Wright, J.) (dismissi ’ l i it t l t Case 2:16-cv-01222-PSG-GJS Document 66 Filed 09/16/16 Page 18 of 18 Page ID #:1001 CASSANDRA E. HOOKS (SBN 244471) ALSTON & BIRD LLP 333 South Hope Street, 16th Floor Los Angeles, CA 90071-1410 Telephone: 213-576-1000 Facsimile: 213-576-1100 E-mail: cassandra.hooks@alston.com Attorneys for Defendant FAY SERVICING, LLC PARVIN LOPRESTI, Plaintiff, v. FAY SERVICING, LLC; THE BANK OF NEW YORK MELLON CORPORATION f/k/a THE BANK OF NEW YORK AS TRUSTEE FOR CWALT ALTERNATIVE LOAN TRUST 2007-0A2; BANK OF AMERICA, N.A.; and DOES 1 THROUGH 100, inclusive, Defendants. Case No.: 2:16-cv-01222-PSG-GJS [Assigned to the Honorable Philip S. Gutierrez] [PROPOSED] ORDER GRANTING DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [Filed Concurrently with Notice of Motion and Motion to Dismiss; and Request for Judicial Notice.] Date: November 14, 2016 Time: 1:30p.m. Ctrm: 880 Complaint Filed: December 29, 2015 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA [PROPOSED] ORDER GRANTING DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36649761v 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 I I , ’ ’ / 49761v , : - cassa r . 7-O 2: - - ’ ’ l i t Filed: Dece ber , Case 2:16-cv-01222-PSG-GJS Document 66-1 Filed 09/16/16 Page 1 of 2 Page ID #:1002 The Motion to Dismiss of Defendant Fay Servicing, LLC ("Fay Servicing") came before this Court on November 14, 2016, at 1:30 p.m., the Hon. Philip S. Guitierrez, presiding. The Court has considered all of the papers filed in support of and in opposition to the Motion, the arguments of counsel at the hearing, and the case file in this action. Good cause appears for the requested relief and accordingly: IT IS HEREBY ORDERED THAT: 1. Fay Servicing's Request for Judicial Notice is hereby GRANTED pursuant to Federal Rule of Evidence 201; and 2. Fay Servicing's Motion to Dismiss is GRANTED as to all claims asserted in Plaintiff's First Amended Complaint, with prejudice and without leave to amend, pursuant to Federal Rule of Civil Procedure 12(b)(6); and 3. The Clerk is hereby ordered to enter judgment in favor of Fay Servicing. Dated: Hon. Philip S. Gutierrez 1 [PROPOSED] ORDER GRANTING DEFENDANT FAY SERVICING, LLC'S AMENDED MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT LEGAL02/36649761v 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 I I , ’ ’ / 49761v “ ” . i g’s st Judi Noti is hereby GRANT icing’s tion to is TED as al clai ’ i _________________ ____________________________________ Case 2:16-cv-01222-PSG-GJS Document 66-1 Filed 09/16/16 Page 2 of 2 Page ID #:1003