Thanh Do v. American Home Mortgage Servicing Inc et al

Filing 53

ORDER by Judge Josephine Staton Tucker: (1) Granting Defendants' Motion to Dismiss 41 , and (2) Denying as Moot Defendants' Motion to Expunge Lis Pendens 42 . Plaintiff is given leave to file a Second Amended Complaint within 21 days of this Order. Failure to file a Second Amended Complaint by that date shall be deemed consent to the dismissal of Plaintiffs claims against AHMSI with prejudice. (mt)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Thanh Do, 12 CASE NO. SACV 11-324-JST (JCGx) Plaintiff, ORDER (1) GRANTING DEFENDANTS’ MOTION TO DISMISS (Doc. 41), AND (2) DENYING AS MOOT DEFENDANTS’ MOTION TO EXPUNGE LIS PENDENS (Doc. 42) 13 vs. 14 15 American Home Mortgage Servicing, Inc., 16 17 et al., Defendants. 18 19 20 21 22 23 24 25 26 27 28 1 1 Before the Court are (1) a Motion to Dismiss Plaintiff’s First Amended Complaint 2 filed by Defendants American Home Mortgage Servicing, Inc. (“AHMSI”), Power Default 3 Servicing, Inc. (“Power Default”), and Mortgage Electronic Registration Systems, Inc. 4 (“MERS”) (collectively, the “Moving Defendants”) (Mot. to Dismiss, Doc. 41); and (2) a 5 Motion to Expunge Lis Pendens filed by the Moving Defendants (Mot. to Expunge, Doc. 6 42). Plaintiff Thanh Do (“Plaintiff”) opposed the Motions on September 26, 2011. (Opp’n 7 to Mot. to Dismiss, Doc. 44; Opp’n to Mot. to Expunge, Doc. 45.) The Moving 8 Defendants replied on October 3, 2011. (Reply, Doc. 46.) The Court heard oral argument 9 on November 14, 2011. 10 For the reasons set forth below, the Court GRANTS the Moving Defendants’ 11 Motion to Dismiss, and DENIES AS MOOT the Moving Defendants’ Motion to Expunge 12 Lis Pendens. 13 14 BACKGROUND 15 Plaintiff initiated this action on January 26, 2011, by filing a Complaint in Orange 16 County Superior Court against AHMSI, Power Default, MERS, and American Home 17 Mortgage Acceptance, Inc. (“AHMA”), which asserted nine claims arising out of the 18 origination, servicing, and subsequent default of a mortgage loan issued to Plaintiff to 19 finance her residence at 20 Pinyon Jay Lane, Aliso Viejo, CA 92656 (the “Property”). 20 (Notice of Removal, Ex. A, Doc. 1.) On the same date, Plaintiff filed with the Orange 21 County Superior Court and recorded with the Orange County Recorder’s Office a Notice 22 of Lis Pendens on the Property. (Defs.’ Req. for Judicial Notice (“RJN”), Ex. 6, Doc. 43.)1 23 24 25 26 27 28 1 On September 7, 2011, the Moving Defendants filed a Request for Judicial Notice in support of their Motion to Dismiss Plaintiff’s First Amended Complaint and their Motion to Expunge Lis Pendens, requesting that the Court take judicial notice of: (1) six documents pertaining to the Property that had been recorded with the Orange County Recorder’s Office, including a November 18, 2004 Deed of Trust, September 2, 2010 Notice of Default, November 1, 2010 Substitution of Trustee, November 6, 2010 Assignment of Deed of Trust, January 3, 2011 Notice of Trustee’s Sale, and January 26, 2011 Notice of Lis Pendens (RJN ¶¶ 1-6); (2) a May 18, (footnote continued) 2 1 On February 25, 2011, the Moving Defendants removed the case to federal court on 2 the basis of diversity jurisdiction. Thereafter, on March 3, 2011, the Moving Defendants 3 filed a Motion to Dismiss Plaintiff’s Complaint, and a Motion to Expunge Lis Pendens to 4 remove the January 26, 2011 Notice of Lis Pendens recorded on the Property. Plaintiff 5 chose not to oppose either motion. Accordingly, the Court granted both motions on April 6 5, 2011, and permitted Plaintiff leave to file an amended complaint within 20 days of the 7 Court’s Order. (Order Granting Defs.’ Mot. to Dismiss and Mot. to Expunge Lis Pendens 8 As Unopposed, Doc. 10.) 9 On April 14, 2011, Plaintiff filed a First Amended Complaint (“FAC”), which is the 10 operative complaint in this action and the subject of the Moving Defendants’ Motion to 11 Dismiss. (FAC, Doc. 16.) The FAC asserts five claims against AHMA and the Moving 12 Defendants, including claims for: (1) fraud and misrepresentation, (2) violation of 13 California Business and Professions Code § 17200, et seq., (3) breach of contract, 14 (4) breach of the covenant of good faith and fair dealing, and (5) injunction against 15 wrongful foreclosure. 16 Plaintiff’s FAC alleges that on or about November 10, 2004, an AHMA 17 representative contacted Plaintiff to discuss refinancing her home mortgage loan. (FAC 18 ¶ 9.) The AHMA representative “promised” Plaintiff that she would be provided with a 19 “favorable fixed rate thirty-year . . . amortized home loan,” and Plaintiff submitted the 20 necessary application and supporting documentation to proceed with the refinance. (Id. 21 ¶ 10.) On November 18, 2004, Plaintiff obtained an adjustable rate mortgage loan from 22 AHMA in the amount of $513,750.00, secured by a Deed of Trust on the Property (the 23 24 2011 Order issued by the Court in this action (id. ¶ 7); (3) a stipulation entered by the parties in this action (id. ¶ 8); and (4) a joint status report filed by the parties in this action (id. ¶ 9). 25 Defendants’ Request for Judicial Notice is GRANTED, as the contents of these documents are “not subject to reasonable dispute” in that they are “capable of accurate and ready determination 26 by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see also Kelly v. Johnston, 111 F.2d 613, 615 (9th Cir. 1940) (a district court may take judicial notice 27 of its own records). 28 3 1 “Loan”). (Id. ¶ 12; RJN, Ex. 1.) Plaintiff alleges that AHMA’s loan representative 2 inaccurately described and failed to disclose material terms of the Loan, concealed or 3 otherwise failed to disclose documents that “would have put [her] on notice that she was 4 being provided with an adjustable rate mortgage and not a fixed rate mortgage as 5 promised,” and forged Plaintiff’s signature on certain loan documents. (FAC ¶¶ 12-13, 6 22.) 7 After AHMA originated and funded the Loan, AHMSI assumed responsibility for 8 servicing the Loan. (Id. ¶ 15.) Thereafter, Plaintiff experienced difficulty making her loan 9 payments, and, on or about July 1, 2010, contacted AHMSI to obtain a loan modification. 10 (Id. ¶ 16.) However, AHMSI “refused to review or allow Plaintiff to submit an application 11 for a modification,” and instead “immediately advised [her] that modifications ‘do not 12 work’ for self-employed borrowers and that Plaintiff should ‘find a job with a W-2.’” (Id.) 13 On September 2, 2010, AHMSI and Default Resolution Network recorded a Notice 14 of Default on the Property, which advised Plaintiff that she owed outstanding payments on 15 the Loan in the amount of $20,582.30. (Id. ¶ 17; RJN, Ex. 2.) On November 1, 2010, 16 Power Default was substituted as trustee for the Loan. (FAC ¶ 18; RJN, Ex. 3.) AHMSI 17 and Power Default recorded a Notice of Trustee’s Sale on the Property on January 6, 2011. 18 (FAC ¶ 19; RJN, Ex. 5.) The foreclosure sale was subsequently postponed (FAC ¶ 19), 19 and has not yet taken place (Mot. to Dismiss at 2). 20 The Moving Defendants filed their first motion to dismiss the FAC on May 3, 2011. 21 On May 18, 2011, the Court struck the motion to dismiss, and ordered the parties to 22 participate in Loan Modification Settlement Proceedings. (Order Striking Mot. to Dismiss, 23 Doc. 29.) The Court granted several requests by the parties to continue the deadline to 24 conduct settlement negotiations in order to permit Plaintiff to provide Defendants with the 25 documentation necessary to apply for a loan modification. On August 25, 2011, the parties 26 filed a Joint Status Report advising the Court that “the Parties agree that a loan 27 modification is not feasible” because Plaintiff and her co-obligor failed to produce the 28 4 1 necessary tax forms to prove their income for the purposes of a loan modification. (Joint 2 Status Report Re: Loan Modification Settlement Conference (“Joint Status Report”) at 2; 3 Doc. 39.) The parties further stipulated that Plaintiff could not produce such forms 4 because neither she, nor her co-obligor, had filed tax returns for tax years 2008, 2009, or 5 2010. (Id.) Based upon the parties’ stipulation, the Court terminated the Loan 6 Modification Settlement Proceedings on August 31, 2011. 7 On September 7, 2011, the Moving Defendants filed a Motion to Dismiss Plaintiff’s 8 FAC and a Motion to Expunge Lis Pendens. 9 10 MOTION TO DISMISS 11 12 I. Legal Standard A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 13 sufficiency of the claims asserted in the complaint. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 14 1949-50 (2009). Rule 12(b)(6) is read in conjunction with Federal Rule of Civil Procedure 15 8(a), which requires only a short and plain statement of the claim showing that the pleader 16 is entitled to relief. Fed. R. Civ. P. 8(a)(2). When evaluating a Rule 12(b)(6) motion, the 17 district court must accept all material allegations in the complaint as true and construe 18 them in the light most favorable to the non-moving party. Moyo v. Gomez, 32 F.3d 1382, 19 1384 (9th Cir. 1994). 20 To survive a motion to dismiss, a plaintiff must allege “enough facts to state a claim 21 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 22 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for 23 more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 24 1949 (quoting Twombly, 550 U.S. at 556). A complaint must (1) “contain sufficient 25 allegations of underlying facts to give fair notice and to enable the opposing party to 26 defend itself effectively,” and (2) “plausibly suggest an entitlement to relief, such that it is 27 not unfair to require the opposing party to be subjected to the expense of discovery and 28 5 1 continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “Although for 2 the purposes of a motion to dismiss [the Court] must take all of the factual allegations in 3 the complaint as true, [it] ‘[is] not bound to accept as true a legal conclusion couched as a 4 factual allegation.’” Iqbal, 129 S. Ct. at 1949-50 (quoting Twombly, 550 U.S. at 555). 5 6 II. Discussion As set forth above, Plaintiff’s FAC asserts five claims against Defendants AHMA, 7 AHMSI, Power Default, and MERS. AHMA has not appeared in this action, and therefore 8 does not join the Moving Defendants’ Motion to Dismiss. Plaintiff concedes that her 9 allegations regarding AHMA’s conduct do not apply to the Moving Defendants. 10 Therefore, the Court does not address them here. (See Opp’n to Mot. to Dismiss at 6.) 11 Plaintiff also concedes that each of her claims against Power Default and MERS should be 12 dismissed. (Opp’n to Mot. to Dismiss at 11.) Accordingly, the Moving Defendants’ 13 Motion to Dismiss is GRANTED as to Power Default and MERS. 14 The Court will address each claim as it pertains to AHMSI in turn. 15 A. Claim One: Fraud and Misrepresentation 16 Plaintiff’s first claim seeks damages and injunctive relief against AHMSI for fraud 17 and misrepresentation. In order to assert a claim for fraud under California law, Plaintiff 18 must plead: (1) a misrepresentation, (2) knowledge of falsity, (3) intent to defraud, 19 (4) justifiable reliance, and (5) resulting damage. Robinson Helicopter Co. v. Dana Corp., 20 34 Cal. 4th 979, 990 (2004). 21 Plaintiff must also meet the heightened pleading standards of Federal Rule of Civil 22 Procedure 9(b), which requires a “party [to] state with particularity the circumstances 23 constituting fraud,” Fed. R. Civ. P. 9(b), including “the who, what, when, where, and how 24 of the misconduct charged” and “what is false or misleading about a statement and why it 25 is false,” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal 26 citations and quotation marks omitted) (“Rule 9(b)’s particularity requirement applies to 27 state-law causes of action”). When a plaintiff asserts a fraud claim against a corporation, 28 6 1 the requirement of specificity in a fraud action requires “[t]he plaintiff [to] allege the 2 names of the persons who made the allegedly fraudulent representations, their authority to 3 speak, to whom they spoke, what they said or wrote, and when it was said or written.” 4 Tarmann v. State Farm Mut. Auto. Ins. Co., 2 Cal. App. 4th 153, 157 (1991). 5 Here, Plaintiff bases her fraud claim against AHMSI on two alleged 6 misrepresentations. First, Plaintiff alleges that “on or about July 1, 2010, Defendant 7 AHMSI misrepresented that self-employed borrowers cannot submit loan modification 8 applications.” (FAC ¶ 24.) Second, Plaintiff asserts that “Defendant AHMSI represented 9 on the Notice of Default that Plaintiff owed $20,582.30 to sufficiently cure the default,” 10 which “on information and belief . . . was not an accurate representation of the balance due 11 to her account because Plaintiff’s interest rate never should have been adjusted.” (Id. 12 ¶ 25). 13 Neither purported fraudulent statement is sufficiently pled to survive the Moving 14 Defendants’ Motion to Dismiss. Plaintiff’s allegations regarding AHMSI’s statement that 15 Plaintiff was ineligible for loan modification are not pled with sufficient particularity, as 16 the allegations fail to identify both the name of the AHMSI representative who made the 17 allegedly fraudulent statement and that individual’s authority to speak on behalf of 18 AHMSI. The allegations also lack underlying facts sufficient to state a claim for fraud that 19 is “plausible on its face,” because the FAC is devoid of allegations regarding resulting 20 damage from AHMSI’s loan modification representations. Twombly, 550 U.S. at 570. 21 Likewise, Plaintiff’s allegations regarding the amount stated on the Notice of 22 Default are not pled with particularity under Rule 9(b) because the FAC does not contain 23 any facts regarding why the amount stated is false other than Plaintiff’s “information and 24 belief” that the interest rate on the Loan should not have been adjusted. Nor do the 25 allegations set forth all elements of a fraud claim under California law because Plaintiff 26 has not alleged that AHMSI knowingly misreported the amount due, that Plaintiff relied on 27 the misrepresentation, or that Plaintiff suffered any damage as a result. Accordingly, the 28 7 1 Moving Defendants’ Motion to Dismiss Plaintiff’s claim for fraud and misrepresentation is 2 GRANTED as to AHMSI. 3 Plaintiff argues that she should be given leave to amend her fraud claim if the Court 4 grants the Moving Defendants’ Motion to Dismiss. “A district court should grant leave to 5 amend . . . unless it determines that the pleading could not possibly be cured by the 6 allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting 7 Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)) (internal quotation marks omitted). 8 Here, leave to amend would be futile as to AHMSI’s purported loan modification 9 misrepresentations because, even assuming an AHMSI representative advised Plaintiff that 10 she could not apply for loan modification, Plaintiff cannot allege she was damaged by that 11 misrepresentation. In the parties’ Joint Status Report filed with this Court, Plaintiff 12 stipulated that she is ineligible for loan modification because she failed to file tax returns 13 for the years 2008 through 2010 (Joint Status Report at 2), and, therefore, cannot prove her 14 income as required for loan modification. Accordingly, Plaintiff cannot allege the 15 necessary element of causal damages from AHMSI’s alleged misrepresentation because 16 she was ineligible for loan modification at the time any purported misstatement was made 17 on July 1, 2010. Therefore, the Court DENIES leave to amend as to Plaintiff’s claim for 18 fraud arising out of AHMSI’s loan modification misrepresentations. 19 Plaintiff may, however, be able to cure the deficiencies in her FAC regarding 20 inaccuracies in the Notice of Default. Thus, Plaintiff is granted leave to amend her fraud 21 claim against AHMSI insofar as it pertains to the Notice of Default, provided that Plaintiff 22 can allege facts, consistent with Rule 11 of the Federal Rules of Civil Procedure, that 23 support each element of fraud under California law. 24 25 26 27 28 8 1 2 3 B. Claim Two: Violation of California Business & Professions Code § 17200 et seq. Plaintiff’s second claim alleges that AHMSI engaged in unfair business practices in 4 violation of California’s Unfair Competition Law (the “UCL”), California Business and 5 Professions Code §§ 17200, et seq., based on its allegedly fraudulent misrepresentations 6 regarding loan modification, set forth above. (FAC ¶¶ 39-40.) Where, as here, a 7 plaintiff’s UCL claim is grounded in fraud, it must meet the heightened pleading standards 8 established by Rule 9(b). Kearns v. Ford Motor Co., 567 F.3d 1120, 1125-26 (9th Cir. 9 2009). Therefore, Plaintiff’s UCL claim fails for the same reason her fraud claim fails— 10 she failed to plead “the names of the persons who made the allegedly fraudulent 11 representations [and] their authority to speak . . . .” Tarmann, 2 Cal. App. 4th at 157. 12 Also as with Plaintiff’s fraud claim, amendment of Plaintiff’s UCL claim would be 13 futile as to AHMSI. The UCL only provides a private right of action for persons who have 14 “suffered injury in fact and [have] lost money or property as a result of the unfair 15 competition.” Cal. Bus. & Prof. Code § 17204; Californians for Disability Rights v. 16 Mervyn’s, LLC, 39 Cal. 4th 223, 227 (2006). A UCL plaintiff must, therefore, prove that 17 the alleged unfair business practice caused the plaintiff harm. There is no causation “when 18 a complaining party would suffer the same harm whether or not a defendant complied with 19 the law.” Daro v. Superior Court, 151 Cal. App. 4th 1079, 1099 (2007). Here, Plaintiff 20 would have been denied a loan modification regardless of whether AHMSI “refus[ed] to 21 allow [her] to submit a loan modification because she is self-employed.” (FAC ¶ 40.) 22 Accordingly, Plaintiff lacks standing under the UCL to assert a claim against AHMSI, and 23 her claim is DISMISSED with prejudice. 24 25 C. Claim Three: Breach of Contract Plaintiff’s third claim alleges that AHMSI breached the written Deed of Trust 26 executed on November 18, 2004, by “failing to service Plaintiff’s loan according to the 27 terms disclosed at origination.” (FAC ¶ 46; id. ¶ 43). Plaintiff further alleges that AHMSI 28 9 1 breached the agreement by “charg[ing] Plaintiff late fees and initiat[ing] foreclosure 2 proceedings.” (Id. ¶ 46.) 3 These allegations do not state a claim for breach of contract under California law. 4 In California, “[a] cause of action for breach of contract requires proof of the following 5 elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for 6 nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the 7 breach.” CDF Firefighters v. Moldonado, 158 Cal. App. 4th 1226, 1239 (2008). While 8 Plaintiff has alleged the existence of a contract—the November 18, 2004 agreement for an 9 adjustable rate mortgage, and an excuse for her nonperformance—fraud in the execution of 10 the contract by AHMA, she has failed to allege any breach of the written agreement by 11 AHMSI. Plaintiff points to no provision of the Deed of Trust with which AHMSI failed to 12 comply. On that basis, Plaintiff has failed to state a breach of contract claim against 13 AHMSI based on the written Deed of Trust that “plausibly suggest[s] an entitlement to 14 relief . . . .” Starr v. Baca, 652 F.3d at 1216. 15 Plaintiff also appears to base her breach of contract claim on AHMSI’s supposed 16 breach of oral representations made by AHMA at the time of origination that vary from 17 those memorialized in the written Deed of Trust. (FAC ¶¶ 44-48.) Such a claim fails as a 18 matter of law. 19 Under California law, “[a] mortgage or deed of trust . . . comes within the statute of 20 frauds.” Secrest v. Sec. Nat’l Mortg. Loan Trust 2002–2, 167 Cal. App. 4th 544, 553 21 (2008) (citing Cal. Civ. Code § 2922). Accordingly, a mortgage or deed of trust is invalid 22 unless it is memorialized by a writing signed by the party to be charged. Cal. Civ. Code § 23 1624. Any oral “contract” between AHMA and Plaintiff for a fixed rate mortgage is, 24 therefore, barred by the statute of frauds and could not have been breached by AHMSI. 25 Therefore, the Moving Defendants’ Motion to Dismiss is GRANTED as to AHMSI. 26 The Court grants Plaintiff leave to amend her claim insofar as she can allege facts, 27 28 10 1 consistent with Rule 11 of the Federal Rules of Civil Procedure, which support a breach of 2 the written Deed of Trust by AHMSI. 3 D. Claim Four: Breach of Covenant of Good Faith and Fair Dealing 4 Plaintiff’s fourth claim for relief asserts that AHMSI breached the covenant of good 5 faith and fair dealing by fraudulently representing to Plaintiff that she could not apply for 6 loan modification because she was self-employed. (FAC ¶ 55(d).) 7 California law implies a covenant of good faith and fair dealing in every contract, 8 which imposes an obligation on contracting parties to “discharge their contractual 9 obligations fairly and in good faith.” Mundy v. Household Fin. Corp., 885 F.2d 542, 544 10 (9th Cir. 1989) (applying California law); see also Guz v. Bechtel Nat’l. Inc., 24 Cal. 4th 11 317, 349 (2000). However, the implied covenant of good faith and fair dealing is not 12 limitless. Rather, it “exists merely to prevent one contracting party from unfairly 13 frustrating the other party’s right to receive the benefits of the agreement actually made.” 14 Guz, 24 Cal. 4th at 349 (emphasis added). “The covenant thus cannot be endowed with an 15 existence independent of its contractual underpinnings.” Id. (quoting Waller v. Truck Ins. 16 Exch., Inc., 11 Cal. 4th 1, 36 (1995)). Nor can it “impose substantive duties or limits on 17 the contracting parties beyond those incorporated in the specific terms of their agreement.” 18 Id. 19 Here, Plaintiff has not alleged any term of the written Deed of Trust that imposes a 20 duty on AHMSI to offer her a loan modification. Nor could she because none exists. 21 Accordingly, Plaintiff’s claim for breach of the covenant of good faith and fair dealing is 22 DISMISSED with prejudice as to AHMSI. 23 E. Claim Five: Injunction Against Wrongful Foreclosure 24 Plaintiff’s fifth claim seeks an injunction against the wrongful foreclosure of her 25 property.2 In her FAC, Plaintiff asserts two bases for her wrongful foreclosure claim: 26 2 The Court notes that Plaintiff’s claim for injunction against wrongful foreclosure is 27 incorrectly labeled in Plaintiff’s FAC as the “sixth cause of action.” The Court will refer to (footnote continued) 28 11 1 (1) AHMSI failed to comply with the requirements of California Civil Code § 2923.5; and 2 (2) AHMSI failed to comply with the requirements of California Civil Code § 2923.53. 3 (FAC ¶¶ 57-65.) In her opposition, Plaintiff concedes that she cannot state a claim under 4 either section because section 2923.5 is preempted by federal law and section 2923.53 was 5 repealed prior to the filing of this action. (Opp’n to Mot. to Dismiss at 10.) Accordingly, 6 Plaintiff’s claim for wrongful foreclosure is DISMISSED as to AHMSI. 7 Plaintiff contends that she should be permitted to amend her wrongful foreclosure 8 claim because “she has alleged all the specific elements to state a valid claim for injunction 9 against wrongful foreclosure based on allegations of fraud and misrepresentation . . . .” 10 (Id. at 11.) The Court disagrees. Any additional fraud claim against AHMSI is duplicative 11 of Plaintiff’s first claim, which fails for the reasons set forth above. To the extent Plaintiff 12 seeks to assert a separate claim for an injunction, her efforts are misplaced because 13 “injunctive relief is a remedy, not a cause of action.” Guessous v. Chrome Hearts, LLC, 14 179 Cal. App. 4th 1177, 1187 (2009). Therefore Plaintiff’s fifth claim is dismissed with 15 prejudice as to AHMSI. 16 17 MOTION TO EXPUNGE LIS PENDENS 18 In addition to filing their Motion to Dismiss Plaintiff’s FAC, the Moving 19 Defendants also Filed a Motion to Expunge Lis Pendens, requesting that the Court 20 (1) expunge the Notice of Lis Pendens recorded by Plaintiff on January 26, 2011, and 21 (2) award the Moving Defendants attorney’s fees in the amount of $2,227.50 for the time 22 expended in drafting and filing their Motion. (Mot. to Expunge at 2.) Such a motion was 23 unnecessary, however, because the Court already granted the Moving Defendants’ request 24 to expunge the January 26, 2011 Notice of Lis Pendens after Plaintiff failed to oppose the 25 Moving Defendants’ Motion to Expunge Lis Pendens filed on March 3, 2011. (Doc. 10.) 26 Plaintiff’s wrongful foreclosure claim as Plaintiff’s “fifth” claim, which is how it should have 27 been numbered sequentially in Plaintiff’s FAC. 28 12 1 Accordingly, the Moving Defendants’ Motion to Expunge is DENIED AS MOOT. Their 2 request for attorney’s fees is also DENIED because the filing of the current motion was 3 unnecessary. 4 5 CONCLUSION 6 For the foregoing reasons, the Court ORDERS: 7 (1) The Moving Defendants’ Motion to Dismiss (Doc. 41) is GRANTED: 8 9 10 11 12 13 14 15 A. Plaintiff’s FAC is DISMISSED with prejudice as to Power Default and MERS. B. Plaintiff’s second, fourth, and fifth claims are DISMISSED with prejudice as to AHMSI. C. Plaintiff’s first and third claims are DISMISSED with leave to amend as to AHMSI in a manner consistent with this Order. (2) The Moving Defendants’ Motion to Expunge Lis Pendens (Doc. 42) is DENIED AS MOOT. 16 (3) The Moving Defendants’ request for attorney’s fees (Doc. 42) is DENIED. 17 (4) Plaintiff is given leave to file a Second Amended Complaint within 21 days of 18 this Order. Failure to file a Second Amended Complaint by that date shall be 19 deemed consent to the dismissal of Plaintiff’s claims against AHMSI with 20 prejudice. 21 22 DATED: November 17, 2011 23 24 JOSEPHINE STATON TUCKER JOSEPHINE STATON TUCKER UNITED STATES DISTRICT JUDGE 25 26 27 28 13

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