No. C-10-0802 MMC.
June 25, 2010
Before the Court is plaintiff's Motion for Enlargement of Time, filed June 18, 2010, by which plaintiff seeks an extension of the deadline to file opposition to defendants' motion to dismiss plaintiff's First Amended Complaint ("FAC"). Defendants have not filed opposition to plaintiff's motion. Having read and considered the moving papers, the Court rules as follows.
Good cause appearing for a limited extension, and there being no opposition to plaintiff's request for additional time to respond to defendants' motion, the Court will afford plaintiff an extension to file opposition.
Further, the Court, having reviewed the FAC, observes that the FAC, liberally construed, includes two claims not expressly addressed in defendants' motion to dismiss, each of which, as discussed below, appears to be subject to dismissal. Accordingly, the Court will direct plaintiff to show cause why those two claims should not be dismissed. See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (holding "trial court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim").
First, plaintiff will be directed to show cause why her claim for rescission under the Truth in Lending Act ("TILA") (see FAC ¶¶ 149-50), should not be dismissed, for the reason that plaintiff alleges the subject property has been sold at a Trustee's Sale (see FAC ¶ 55). See Meyer v. Ameriquest Mortgage Co., 342 F.3d 899, 903 (9th Cir. 2003) (holding "right to rescind [under TILA] ends with the sale" of the property); Worthy v. World Wide Fin. Servs., Inc., 347 F. Supp. 2d 502, 507 (E.D. Mich. 2004) (holding plaintiff has "no right to rescind the refinancing mortgage transaction after the foreclosure auction").
Second, plaintiff will be directed to show cause why her claim that defendants deprived plaintiff of due process in violation of Article I, Section 7 of the California Constitution (see FAC ¶¶ 202-03), should not be dismissed, for the reason that such a claim requires a showing of "state action," and the institution of nonjudicial foreclosure proceedings does not, as a matter of law, constitute "state action." See Garfinkle v. Superior Court, 21 Cal. 3d 268, 281-82 (Cal. 1978) (holding "state action" required to establish claim for violation of Article I, Section 7 of California Constitution; finding "nonjudicial foreclosure of a deed of trust constitutes private action authorized by contract and does not come within the scope of the California due process clause").
Accordingly, plaintiff's motion for an enlargement of time is hereby GRANTED, and the Court hereby DIRECTS plaintiff to show cause why her claim for rescission and her claim based on Article I, Section 7 of the California Constitution should not be dismissed, as follows:
1. No later than July 16, 2010, plaintiff shall file any opposition to defendants' motion to dismiss, and shall include therein any argument as to why her claim for rescission and her claim based on Article I, Section 7 of the California Constitution should not be dismissed.
2. No later than July 23, 2010, defendants shall file any reply to plaintiff's opposition.
3. The hearing on defendants' motion to dismiss is hereby CONTINUED from July 9, 2010 to August 6, 2010, at 9:00 a.m., Courtroom 7.