Esther Enunwaonye v. Aurora Loan Services LLC et al

Filing 56

ORDER GRANTING Defendants Motions to Dismiss 48 , 50 by Judge Otis D Wright:SBMCs Motion to Dismiss is hereby GRANTED and all claims against SBMC are hereby DISMISSED WITH PREJUDICE. Additionally, Auroras Motion is GRANTED. Plaintiffs claims again st Aurora for tortious violation of statute, reformation, violation of California Civil Code § 2923.6; and violation of California Civil Code § 1788.17 are DISMISSED WITH PREJUDICE. Plaintiffs claims against Aurora for fraud, violation of C alifornia Civil Code § 1572, quiet title, violation of California Business and Professions Code § 17200, declaratory relief, and injunctive relief are DISMISSED WITHOUT PREJUDICE. As to these claims, Plaintiff shall have forty-five (45) day s in which to amend her complaint to state a claim II:against Aurora. If Plaintiff can properly allege facts to support justifiable reliance, she may amend her fraud claim. Plaintiff is otherwise granted leave to amend to bring additional claims agai nst Aurora which have not already been adjudicated by the Court.Finally, the Court advises Plaintiff that a Federal Pro Se Clinic is located in the United States Courthouse. Plaintiff may wish to visit the clinic before filing an amended complaint. (lc)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 18 19 Case No. CV 11-00879 ODW (MANx) ) ) ) Plaintiff, ) ) v. ) ) AURORA LOAN SERVICES LLC; ) AURORA BANK FSB; QUALITY ) LOAN SERVICE CORPORATION; ) SBMC MORTGAGE, GENERAL ) PARTNERSHIP; and DOES I-XX, ) Inclusive, ) ) Defendants. ) ________________________________ ) ESTHER ENUNWAONYE, Order GRANTING Defendants’ Motions to Dismiss [48, 50] [Filed 07/01/11, 07/11/11] 20 I. INTRODUCTION 21 22 Pending before the Court are Defendants’ two concurrently-filed motions: (1) 23 SBMC Mortgage’s (“SBMC”) Motion to Dismiss Plaintiff’s Second Amended Complaint 24 (“SAC”), and (2) Aurora Loan Services LLC and Aurora Bank FSB’s (collectively, 25 “Aurora”)1 Motion to Dismiss Plaintiff’s SAC. (Dkt. Nos. 48, 50.)2 Plaintiff, Esther 26 Enunwayonye (“Plaintiff”) filed a consolidated Opposition on August 3, 2011, (Dkt. No. 27 1 28 Where appropriate, the Court refers to SBMC, Aurora Loan and Aurora Bank collectively as “Defendants.” 2 Quality Loan Service has been excused from further participation in this case. (See Dkt. No. 14.) 1 1 52), to which SBMC filed a Reply on August 4, 2011, (Dkt. No. 52). Having considered 2 the papers filed in support of and in opposition to the instant Motions, the Court deems 3 the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7- 4 15. For the reasons discussed below, Defendants’ Motions to Dismiss are GRANTED. 5 II. FACTUAL BACKGROUND 6 In September 2006, Plaintiff obtained a loan from SBMC to purchase property 7 located at 800 Crenshaw Boulevard, Los Angeles, California (the “Subject Property”). 8 (SAC at 3.) The total purchase price for the Subject Property was $1,671,275.56, of 9 which $1,050,000.00 was financed with SBMC under a five-year, interest-only adjustable 10 rate loan. (SAC at 3.) Shortly after the loan funded, SBMC sold Plaintiff’s loan and 11 transferred the servicing rights to Homecomings Financial.3 (SBMC Mot. at 2; SAC ¶ 12 1, Exhs. 3b, 4.) Thereafter, Aurora obtained the servicing rights and Quality Loan 13 Service (“Quality”) was substituted as trustee under the deed of trust. (SAC at 5; Aurora 14 Mot. at 2.) 15 As of January 1, 2008, Aurora increased Plaintiff’s monthly payment from 16 $3,881.00 to $4,200.00, purportedly to cover property mortgage insurance. (SAC at 6, 17 7.) Plaintiff alleges that this increase was unwarranted because she independently 18 maintained property mortgage insurance on the Subject Property. (SAC at 6-7.) 19 Notwithstanding, Plaintiff defaulted on her loan on or before April 1, 2009. (Aurora Mot. 20 at 2.) Quality, as trustee, thereafter recorded a Notice of Default on behalf of Aurora. 21 (SAC at 17.) Because Plaintiff failed to cure the default, the Subject Property was sold 22 at an auction on August 9, 2010, whereby title was conveyed to Aurora. (Aurora Mot. 23 at 2; SAC at 17.) 24 As a result of the foregoing events, on December 30, 2010, Plaintiff filed a 25 Complaint in Los Angeles Superior Court. (Dkt. No. 1.) Aurora, with the consent of 26 Quality and SBMC, subsequently removed the action to federal court. (Dkt. No. 1.) On 27 February 4, 2011, SBMC and Aurora each filed a motion to dismiss Plaintiff’s 28 Complaint, (Dkt. Nos. 4, 6), both of which were granted. (Dkt. No. 14.) Plaintiff then 3 Homecomings Financial is not a party to this case. 2 1 filed her First Amended Complaint (“FAC”) on March 23, 2011, (Dkt. No. 16), which 2 was once again dismissed because it contained “substantially the same allegations as the 3 original Complaint.” (Dkt. No. 42.) On June 15, 2011, Plaintiff filed her SAC, (Dkt. No. 4 43), alleging the following ten claims against Defendants: (1) declaratory relief; (2) fraud; 5 (3) tortious violation of statute; (4) quiet title; (5) reformation; (6) violation of California 6 Business and Professions Code § 17200; (7) violation of California Civil Code § 2923.6; 7 (8) violation of California Civil Code § 1788.17; (9) violation of California Civil Code 8 § 1572; and (10) injunctive relief. (Dkt. No. 43.) 9 Defendants now move to dismiss Plaintiff’s SAC in its entirety. (Dkt. Nos. 48, 10 50.) The Court addresses Defendants’ arguments and the sufficiency of Plaintiff’s claims 11 below. 12 III. LEGAL STANDARD 13 “To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a 14 complaint generally must satisfy only the minimal notice pleading requirements of Rule 15 8(a)(2).” Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires “a 16 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 17 R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its “[f]actual allegations 18 must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. 19 v. Twombly, 550 U.S. 544, 555 (2007). Mere “labels and conclusions” or a “formulaic 20 recitation of the elements of a cause of action will not do.” Id. Rather, to overcome a 21 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to 22 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 23 1949 (2009) (internal quotation and citation omitted). “The plausibility standard is not 24 akin to a probability requirement, but it asks for more than a sheer possibility that a 25 defendant has acted unlawfully. Where a complaint pleads facts that are merely 26 consistent with a defendant’s liability, it stops short of the line between possibility and 27 plausibility of entitlement of relief.” Id. (internal quotation and citation omitted). The 28 Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: “In sum, for a complaint to survive a motion to dismiss, the non-conclusory 3 1 factual content, and reasonable inferences from that content, must be plausibly suggestive 2 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 3 (9th Cir. 2009) (internal quotation marks omitted). 4 When considering a 12(b)(6) motion, a court is generally limited to considering 5 materials within the pleadings and must construe “[a]ll factual allegations set forth in the 6 complaint . . . as true and . . . in the light most favorable to [the plaintiff].” See Lee v. 7 City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citing Epstein v. Washington Energy Co., 8 83 F.3d 1136, 1140 (9th Cir. 1996)). A court is not, however, “required to accept as true 9 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 10 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 11 Finally, when considering a 12(b)(6) motion, courts must bear in mind that leave 12 to amend a pleading “shall be freely given when justice so requires.” Fed. R. Civ. P. 13 15(a). While Rule 15(a) is very liberal, “a district court need not grant leave to amend 14 where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) 15 produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v. 16 Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citations omitted). Against this 17 backdrop, the Court turns to the merits of the instant motions. 18 IV. DISCUSSION 19 Most of the claims set forth in Plaintiff’s SAC are dependant upon a finding that 20 Defendants engaged in fraudulent conduct. Accordingly, the Court first addresses the 21 sufficiency of Plaintiff’s claim for fraud, followed by a discussion of the remaining 22 claims. Finally, the Court determines whether injunctive and/or declaratory relief are 23 appropriate. 24 A. 25 Plaintiff’s Second Claim for Fraud and Ninth Claim for Violation of California Civil Code Section 15724 26 27 28 4 Plaintiff alleges a claim under California Civil Code section 1572, which is the California statute for actual fraud. Because the pleading requirements are substantially the same for both Plaintiff’s fraud claim and Plaintiff’s section 1572 claim, the Court analyzes these claims collectively. 4 1 A complaint alleging fraud must meet the heightened pleading standards under 2 Federal Rule of Civil Procedure 9(b) (“Rule 9(b)”), which requires Plaintiff to “state with 3 particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The 4 complaint must specify such facts as the times, dates, places, and benefits received, and 5 other details of the alleged fraudulent activity.” Neubronner v. Milken, 6 F.3d 666, 672 6 (9th Cir. 1993) (citation omitted). Rule 9(b) also does not allow plaintiffs to “merely 7 lump multiple defendants together but ‘require[s] plaintiffs to differentiate their 8 allegations when suing more than one defendant . . . and inform each defendant separately 9 of the allegations surrounding his alleged participation in the fraud.’” Swartz v. KPMG 10 LLP, 476 F.3d 756, 764 (9th Cir. 2007) (citation omitted). Moreover, a fraud claim 11 involving a corporate defendant, “must identify the ‘names of the persons who made the 12 allegedly fraudulent representations, their authority to speak, to whom they spoke, what 13 they said or wrote, and when it was said or written.’” Saldate v. Wilshire Credit Corp., 14 686 F. Supp. 2d 1051, 1065 (2010) (quoting Tarmann v. State Farm Mut. Auto Ins. Co., 15 2 Cal. App. 4th 153, 157 (1991)). 16 Additionally, while the requirements of Rule 9(b) are federally imposed, “a federal 17 court will examine state law to determine whether the elements of fraud have been pled 18 sufficiently to state a cause of action.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 19 1103 (9th Cir. 2003) (citation omitted). “In California, the elements for a claim of fraud 20 are: (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce 21 reliance; (4) justifiable reliance; and (5) resulting damage.” Clark v. Countrywide Home 22 Loans, Inc., 732 F. Supp. 2d 1038, 1044 (E.D. Cal. 2010) (citing Small v. Fritz Cos., 65 23 P. 3d 1255, 1258 (Cal. 2003)). 24 Here, Plaintiff alleges that the foreclosure and eventual loss of her property were 25 caused by a sequence of fraudulent acts committed by Defendants. (SAC ¶ 40.) 26 Specifically, Plaintiff contends that Defendants “engaged in an illegal scheme,” whereby 27 they fraudulently executed loans secured by real property, eventually allowing them to 28 obtain “profits by the sale of instruments arising out of the transactions.” (SAC ¶ 26.) 5 1 The Court discusses SBMC’s and Aurora’s alleged participation in the fraudulent scheme 2 individually. 3 First, Plaintiff alleges that SBMC made several misrepresentations during the 4 inception of the loan itself. Specifically, Plaintiff’s alleges that SBMC defrauded 5 Plaintiff by “falsif[ying] Plaintiff’s zip code[,] . . . exceeding the Maximum Amount set 6 by Freddie Mac . . . [and] failing to disclose the true cost of Plaintiff’s loan.” (SAC at 3- 7 6, 21.) 8 impossible for her to obtain a favorable refinancing option and played a significant role 9 in causing her to default on the loan. (SAC at 4, 22.) Plaintiff further alleges that these fraudulent misrepresentations made it 10 Each of these contentions fails to state facts “plausibly suggesting” SBMC made 11 a fraudulent misrepresentation. See Ashcroft, 129 S. Ct. at 1949. With respect to the 12 allegation that SBMC defrauded Plaintiff by exceeding the “Maximum Amount set by 13 Freddie Mac,” Plaintiff fails to allege what specific misrepresentations or omissions were 14 made. Rather, Plaintiff merely states that she “is told and believes” that her loan 15 exceeded this amount without any reference to the “who, what, where, when, where and 16 how” the omission occurred. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th 17 Cir. 2009). Without alleging the specific circumstances surrounding SBMC’s alleged 18 omission, Plaintiff’s claim lacks the specificity required by Rule 9(b). Moreover, 19 SBMC’s failure to notify Plaintiff of this information, in itself, is simply insufficient to 20 support a fraud claim, and Plaintiff has not shown any case law that establishes otherwise. 21 22 Similarly, Plaintiff’s allegation that SBMC deceived plaintiff by failing to disclose 23 the true cost of Plaintiff’s loan does not mention with the requisite specificity what 24 misrepresentations were actually made. The loan itself clearly sets forth its terms, i.e., 25 that it was a five-year adjustable rate mortgage loan, with payments set to increase on 26 October 1, 2011. (SBMC RJN, Exh. B.) Without any allegation by Plaintiff that an 27 SBMC representative conveyed contradicting information, Plaintiff’s claim fails in this 28 respect. 6 1 Finally, as for the incorrect zip code, Plaintiff fails to establish justifiable reliance 2 because she could not have justifiably relied on a misrepresentation of her own zip code, 3 while admittedly having knowledge of its falsity. In sum, each of Plaintiff’s allegations 4 with respect to SBMC’s participation in the alleged fraudulent scheme fail to meet the 5 requisite heightened pleading standard under Rule 9(b). 6 Second, Plaintiff alleges that Aurora “fraudulently took over the servicing rights 7 to Plaintiff’s property with intention to steal it” and “devised a scheme to add redundant 8 Property mortgage Insurance on Plaintiff’s account.” (SAC at 6, 7.) Here, with respect 9 to Plaintiff’s allegation that Aurora fraudulently assumed the servicing rights, Plaintiff 10 does not “state with particularity the circumstances constituting fraud or mistake,” but 11 rather makes nothing more than mere conclusory allegations. Fed. R. Civ. P. 9(b). Thus, 12 Plaintiff’s allegations in this respect fail. 13 Plaintiff’s allegations with respect to Aurora’s alleged actions to “devise[] a 14 scheme to add redundant Property mortgage Insurance on Plaintiff’s account,” however, 15 are more substantive. Nevertheless, while Plaintiff’s allegations may be sufficient to 16 establish some of the elements of a fraud claim, Plaintiff fails to assert how she justifiably 17 relied on Aurora’s alleged misrepresentation. Indeed, Plaintiff essentially admits that she 18 did not rely on Aurora’s conduct because she continued to pay the original payment of 19 $3,881.00, not the increased payment of $4,200.00. (SAC at 6, 8.) 20 Plaintiff fails to allege facts to support an element of her claim, Plaintiff’s fraud claim 21 fails. Thus, because 22 Because Plaintiff has been given multiple opportunities to sufficiently state a claim 23 against SBMC and has failed to do so, it appears as though further amendment will be 24 futile. In light of the foregoing, Plaintiff’s claim for fraud and Plaintiff’s claim for 25 violation of California Civil Code § 1572 against SBMC are hereby DISMISSED WITH 26 PREJUDICE. Conversely, because it is possible that Plaintiff may have relied on 27 Aurora’s alleged misrepresentation in a way unknown to the Court at this time, she may 28 be able to establish a fraud claim against Aurora. To allege such justifiable reliance, Plaintiff must assert facts indicating how she justifiably relied on Aurora’s alleged 7 1 misrepresentation. The Court finds that allowing Plaintiff another opportunity to amend 2 will not unduly prejudice Aurora, nor cause an undue delay in litigation. Furthermore, 3 it may not be futile if Plaintiff can provide the requisite facts. See AmerisourceBergen 4 Corp., 465 F.3d at 951. Consequently, Plaintiff’s claim for fraud and Plaintiff’s claim 5 for violation of California Civil Code § 1572 against Aurora are hereby DISMISSED 6 WITHOUT PREJUDICE. 7 B. Plaintiff’s Third Claim for Tortious Violation of Statute 8 Plaintiff alleges a claim for tortious violation of the Real Estate Settlement 9 Procedures Act (“RESPA”). Specifically, Plaintiff alleges that Defendants’ “failure to 10 respond to R.E.S.P.A. constitute[s] a violation of 12 U.S.C. § 2607(b). (SAC ¶ 147.) 11 “Under RESPA, any action pursuant to § 2607 may be brought within one year ‘from the 12 date of the occurrence of the violation.’” Jensen v. Quality Loan Serv. Corp., 702 F. 13 Supp. 2d 1183, 1195 (E.D. Cal. 2010) (quoting 12 U.S.C. § 2614). The statute of 14 limitations begins to run and the “ill occurs, if at all, when the plaintiff pays for the 15 [tainted] service, typically at the closing.” Id. (citations omitted). As Plaintiff’s loan 16 closed in September of 2006 and Plaintiff filed this action on December 30, 2010, 17 Plaintiff’s cause of action under 12 U.S.C. § 2607 is barred by the statute of limitations 18 and is therefore DISMISSED WITH PREJUDICE as to all Defendants. 19 C. Plaintiff’s Fourth Claim for Quiet Title and to Set Aside Foreclosure 20 “The purpose of a quiet title action is to determine ‘all conflicting claims to the 21 property in controversy’” and to distribute to each the interest to which they are entitled. 22 Ayala v. World Savings Bank, FSB, 616 F. Supp. 2d 1007, 1015 (C.D. Cal. 2009) (citation 23 omitted). To allege a claim for quiet title, a complaint must be verified and include: (1) 24 a legal description of the property; (2) the title of the plaintiff and the basis of the title; 25 (3) the adverse claims to the title of the plaintiff; (4) the date as of which the 26 determination is sought; and (5) a prayer for the determination of the title of the plaintiff. 27 Cal. Civ. Pro. § 761.020. Here, Plaintiff alleges that Defendants “employed coercive 28 tactics in order to force Plaintiff to sign the loan documents” by allegedly making “false representations to Plaintiff in order to fund a loan” with “excessively high interest rates.” 8 1 (SAC ¶¶ 163-64.) Essentially, Plaintiff’s request that the Court quiet title to the Subject 2 Property and set aside foreclosure is predicated on her fraud claim, which has been 3 dismissed with prejudice against SBMC and has been dismissed without prejudice against 4 Aurora. Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiff’s claim for 5 quiet title and to set aside foreclosure against SBMC and DISMISSES WITHOUT 6 PREJUDICE Plaintiff’s claim for quiet title and to set aside foreclosure against Aurora. 7 D. Plaintiff’s Fifth Claim for Reformation 8 Plaintiff’s fifth claim seeks reformation of the loan pursuant to California Civil 9 Code section 3399. Reformation allows parties to revise a contract when, “through fraud 10 or a mutual mistake of the parties, or a mistake of one party, which the other at the time 11 knew or suspected,” the contract’s terms do not reflect the parties’ true intentions. Cal. 12 Civ. Code § 3399. Revisions may only take place “so far as it can be done without 13 prejudice to rights acquired by third persons, in good faith and for value.” Id. 14 Here, Plaintiff alleges SBMC “committed a fraud against Plaintiff” because SBMC 15 “did not disclose the terms and conditions for repayment, interest annual percentage rate, 16 prior to obtaining Plaintiff’s signature.” (SAC ¶ 151.) Plaintiff, however, insufficiently 17 alleges a substantive fraud claim against SBMC. Accordingly, because Plaintiff’s claim 18 for reformation is predicated on SBMC’s allegedly fraudulent conduct during the 19 origination of the loan, Plaintiff’s claim for reformation is similarly insufficient and is 20 hereby DISMISSED WITH PREJUDICE as to all Defendants. 21 22 E. Plaintiff’s Sixth Claim for Violation of California’s Business And Professions Code Section 17200 23 Plaintiff alleges a claim under California’s Unfair Competition Law (“UCL”). Cal. 24 Bus. & Prof. Code § 17200. The UCL prohibits “any unlawful, unfair or fraudulent 25 business act or practice and unfair, deceptive, untrue or misleading advertising.” Id. 26 Liability under each prong of the UCL is “separate and distinct” from the others and, 27 therefore, the statute “applies separately to business acts or practice that are (1) unlawful, 28 (2) unfair, and (3) fraudulent.” Clark, 732 F. Supp. 2d at 1050. 9 1 First, Plaintiff fails to specify the basis for her UCL claim. She merely creates a 2 conclusory list of damages suffered and lists several statutes and claims, alleging that 3 Defendants have purportedly engaged in “unfair, unlawful, and/or fraudulent conduct” 4 under the UCL. Because each prong of a § 17200 violation introduces a separate theory 5 of liability, Plaintiff’s failure to allege whether Defendants’ actions were unlawful, unfair, 6 fraudulent, or some combination thereof, falls short of the Rule 8(a)(2) requirement. See 7 e.g., Clark, 732 F. Supp. 2d at 1050 (finding the plaintiff’s § 17200 claim deficient 8 because his allegations did not specify which of the three UCL prongs defendants 9 violated). Accordingly, because Plaintiff’s UCL claim against SBMC is predicated on 10 her fraud claim, which has been dismissed with prejudice, Plaintiff’s UCL claim against 11 SBMC is also DISMISSED WITH PREJUDICE. However, because Plaintiff may be 12 able to properly allege a UCL claim against Aurora, this claim is DISMISSED 13 WITHOUT PREJUDICE. 14 F. Plaintiff’s Seventh Claim for Violation of California Civil Code Section 2923.6 15 16 Plaintiff alleges in her seventh claim that under section 2923.6 “Defendants are 17 now contractually bound to accept the loan modification as provided” by Plaintiff. (SAC 18 ¶¶ 179, 185.) California Civil Code § 2923.6 provides “any duty servicers may have to 19 maximize net present value . . . to all parties in a loan pool” under certain conditions. 20 However, “there is no private cause of action under Section 2923.6.” Quinteros v. 21 Aurora Loan Services, 740 F. Supp. 2d 1163, 1174 (E.D. Cal. 2010) (citations omitted). 22 Therefore, Plaintiff’s Section 2923.6 claim is DISMISSED WITH PREJUDICE as to 23 all Defendants. 24 G. 25 Plaintiff’s Eighth Claim for Violation of California Civil Code Section 1788.17 26 Plaintiff next alleges a violation of the Rosenthal Fair Debt Collection Practices 27 Act (“California FDCPA”), California Civil Code § 1788.17, against all Defendants. The 28 California FDCPA was enacted to “prohibit debt collectors from engaging in unfair and deceptive acts or practices in the collection of consumer debts, and to require debtors to 10 1 act fairly in entering into and honoring such debts.” Cal. Civ. Code § 1788.1; see Clark, 2 732 F. Supp. 2d at 1047-48. Here, because “foreclosure does not constitute debt 3 collection under the [California] FDCPA,” Izenberg v. ETS Services, LLC, 589 F. Supp. 4 2d 1193, 1199 (C.D. Cal. 2008), and Plaintiff’s California FDCPA claim arises from 5 foreclosure-related conduct, Plaintiff’s California FDCPA claim is DISMISSED WITH 6 PREJUDICE as to all Defendants. 7 8 H. Plaintiff’s First Claim for Declaratory Relief and Tenth Claim for Injunctive Relief 9 In her first claim for declaratory relief, Plaintiff seeks a judicial determination of 10 her rights and title in the Subject Property. Additionally, Plaintiff seeks, in her tenth 11 claim, an injunction to restrain Defendants from “foreclos[ing] on the Subject Property 12 by conducting a trustee’s sale.” (SAC ¶ 206.) Because both declaratory relief and 13 injunctive relief require an underlying claim, Am. States Ins. Co. v. Kearns, 15 F.3d 142, 14 143 (9th Cir. 1994); Clark, 732 F. Supp. 3d at 1050 (citations omitted), and here, none 15 against SBMC exist, Plaintiff’s first and tenth claims are DISMISSED WITH 16 PREJUDICE as to SBMC. Conversely, because Plaintiff may be able to state a claim 17 against Aurora, Plaintiff’s first and tenth claims against Aurora are DISMISSED 18 WITHOUT PREJUDICE. 19 IV. CONCLUSION 20 For the foregoing reasons, SBMC’s Motion to Dismiss is hereby GRANTED and 21 all claims against SBMC are hereby DISMISSED WITH PREJUDICE. Additionally, 22 Aurora’s Motion is GRANTED. Plaintiff’s claims against Aurora for tortious violation 23 of statute, reformation, violation of California Civil Code § 2923.6; and violation of 24 California Civil Code § 1788.17 are DISMISSED WITH PREJUDICE. Plaintiff’s 25 claims against Aurora for fraud, violation of California Civil Code § 1572, quiet title, 26 violation of California Business and Professions Code § 17200, declaratory relief, and 27 injunctive relief are DISMISSED WITHOUT PREJUDICE. As to these claims, 28 Plaintiff shall have forty-five (45) days in which to amend her complaint to state a claim 11 1 against Aurora. If Plaintiff can properly allege facts to support justifiable reliance, she 2 may amend her fraud claim. Plaintiff is otherwise granted leave to amend to bring 3 additional claims against Aurora which have not already been adjudicated by the Court. 4 Finally, the Court advises Plaintiff that a Federal Pro Se Clinic is located in the 5 United States Courthouse at 312 N. Spring Street, Room 525, Fifth Floor, Los Angeles, 6 California 90012. The clinic is open for appointments on Mondays, Wednesdays, and 7 Fridays at 9:30 a.m. The Federal Pro Se Clinic offers on-site information and guidance 8 to individuals who are representing themselves in federal civil actions. Plaintiff may 9 wish to visit the clinic before filing an amended complaint. 10 IT IS SO ORDERED. 11 November 8, 2011 12 13 14 __________ _______________ 15 HON. OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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