Maria Lopez v. Wells Fargo Bank NA et al

Filing 24

MINUTES (IN CHAMBERS) ORDER by Judge Andrew J. Guilford denying 11 MOTION to Remand Case to State Court and granting 17 MOTION to Dismiss Case. The Court DENIES the Motion to Remand and GRANTS the Motion to Dismiss. The Court finds leave to a mend is inappropriate under the applicable legal standard. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). The Court will enter a simple judgment for Wells Fargo and against Lopez. (see document for details). ( MD JS-6. Case Terminated ) (dro)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Title

MARIA LOPEZ v. WELLS FARGO BANK, N.A.

Present: The
Honorable

Date

October 17, 2016

ANDREW J. GUILFORD

Lisa Bredahl
Deputy Clerk
Attorneys Present for Plaintiffs:
Proceedings:

Not Present
Court Reporter / Recorder

Tape No.

Attorneys Present for Defendants:

[IN CHAMBERS] ORDER DENYING MOTION TO
REMAND AND GRANTING MOTION TO DISMISS

There are two pending motions—Plaintiff Maria Lopez’s motion to remand (“Motion to
Remand”) and Defendant Wells Fargo Bank, N.A.’s (“Wells Fargo”) motion to dismiss
(“Motion to Dismiss”). The Court DENIES the Motion to Remand and GRANTS the
Motion to Dismiss. Before getting into the reasoning underlying these decisions, some
history on this and a related case is helpful. All of the dates in this order are in 2016.
1. THIS CASE
First, there’s this case.
•

On June 28, Plaintiff Maria Lopez sued Defendant Wells Fargo Bank,
N.A. (“Wells Fargo”) in California state court for several state law claims
arising out of a home loan.

•

On July 29, Wells Fargo removed this case to federal court. Wells Fargo
said that this Court has subject matter jurisdiction over this case under the
diversity clause of the Constitution.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Date

Title

October 17, 2016

MARIA LOPEZ v. WELLS FARGO BANK, N.A.
•

On August 5, Wells Fargo filed a motion to dismiss this case along with
a supporting request for judicial notice. Wells Fargo filed the motion to
dismiss after repeatedly trying to contact Lopez’s attorney to discuss the
motion by leaving voicemails and sending emails to Lopez’s attorney,
without getting any response. Lopez had to file an opposition or a
statement of non-opposition to that motion by August 22.

•

On August 10, the Court on its own initiative issued an order requiring
Wells Fargo to show cause (“OSC”) why this case shouldn’t be remanded.
The OSC required Wells Fargo to show up at a hearing on August 29 and
explain why this Court has subject matter jurisdiction over this case. The
Court didn’t require Lopez to appear but told her she could if she wanted.

•

On August 22, Lopez’s deadline to file an opposition or statement of nonopposition to the motion to dismiss passed. Lopez didn’t file the required
document.

•

On August 29, two things happened. That morning, the Court held the
hearing on the OSC. Wells Fargo appeared through its counsel and
convinced the Court that discharging the OSC was appropriate. Lopez
didn’t appear. That afternoon, Lopez filed her Motion to Remand this
case after supposedly calling opposing counsel. That motion is now
pending.

•

On August 31, Wells Fargo filed documents pointing out Lopez’s failure
to file an opposition to the motion to dismiss. This was two days after
Wells Fargo’s own deadline to file a reply supporting the motion to
dismiss.

•

On September 1, Lopez filed a first amended complaint in this case. This
filing came 27 days after Wells Fargo filed its first motion to dismiss. That
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Title

MARIA LOPEZ v. WELLS FARGO BANK, N.A.

•

Date

October 17, 2016

number will become important later. By filing an amended complaint,
Lopez rendered the then-pending motion to dismiss moot.
On September 15, Wells Fargo filed its Motion to Dismiss Lopez’s first
amended complaint, along with a supporting request for judicial notice.
That is the motion to dismiss now pending. Wells Fargo filed the Motion
to Dismiss after repeatedly trying to contact Lopez’s attorney to discuss
the motion by leaving voicemails and sending emails to Lopez’s attorney,
without getting any response. Lopez had to file an opposition or
statement of non-opposition to the Motion to Dismiss by September 26,
2016.

•

On September 19, Wells Fargo unilaterally filed what was supposed to be
a joint report by the parties under Federal Rule of Civil Procedure 26(f).
Wells Fargo again said it had been unable to confer with Lopez despite its
repeated attempts.

•

On September 26, Lopez’s deadline to file an opposition or statement of
non-opposition to the Motion to Dismiss passed. Lopez did not file the
required document.

•

On October 3, Wells Fargo’s reply brief supporting the Motion to Dismiss
was due. In the late afternoon, Wells Fargo filed documents saying it
hadn’t received an opposition to the Motion to Dismiss. About five hours
later, Lopez filed an opposition.

•

On October 10, Wells Fargo filed a reply supporting the Motion to
Dismiss. This came a week after the deadline to do so, on a court holiday,
and only a week before the hearing on the Motion to Dismiss.

2. THE OTHER CASE
There’s another, related case too.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Date

Title

October 17, 2016

MARIA LOPEZ v. WELLS FARGO BANK, N.A.
•

On July 7, an entity named “Winston Trust #8300, Southland Homes
Real Estate and Investment LLC, as Trustee” filed an unlawful detainer
action against Lopez in California state court. This other case involved the
same property as this case.

•

On August 24, Lopez removed the other case to federal court.

•

On September 2, the Court remanded the other case back to California
state court on its own motion. The Court discussed the impropriety of
parties removing cases to federal court solely to delay a pending state
court proceeding.

3. ANALYSIS
Whew. The pending Motion to Remand and Motion to Dismiss raise numerous legal
questions. The Court only has to address a handful here.
3.1 The Motion to Remand
3.1.1 The Filing of the Motion to Remand
There’s a threshold procedural issue regarding the filing of the Motion to Remand: Local
Rule 7-3. With a few exceptions inapplicable here, the rule requires that a party meet with its
opponents to talk about the substance of a contemplated motion before filing it. C.D. Cal.
L.R. 7-3. In most cases, this meeting must take place at least seven days before the motion in
question is filed. Id.
Local Rule 7-3 isn’t just a piece of petty pedantry put down to trip up lawyers. Nor is Local
Rule 7-3 a mere formalism simply there to be checked off by lawyers. No—Local Rule 7-3
instead helps ensure counsel fulfill their obligation “to secure the just, speedy, and
inexpensive determination of every action and proceeding,” by avoiding unnecessary
litigation. Fed. R. Civ. P. 1. Making two sides talk can significantly help focus and clarify
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Date

Title

October 17, 2016

MARIA LOPEZ v. WELLS FARGO BANK, N.A.

disputes, even when one side still has to file a motion at the end of the day. So the Court
takes compliance with Rule 7-3 seriously, as it must to fully honor its own obligations under
Federal Rule of Civil Procedure 1.
Here, Lopez hasn’t complied with Local Rule 7-3. Lopez’s attorney stated under penalty of
perjury that his office (it’s not clear who) called opposing counsel once on August 29 at 1:00
p.m. to discuss the Motion to Remand but received no reply. Wells Fargo certainly didn’t
have much time to respond. Lopez filed the Motion to Remand 82 minutes later, at 2:22 p.m.
Even assuming that everything Lopez’s attorney say is true, Lopez hasn’t done what she
needed to do. The letter of Local Rule 7-3 requires the meeting take place a week before
filing, not mere minutes. And the spirit of Local Rule 7-3 probably requires more than just
one missed call to opposing counsel. Lopez’s meager attempt, made minutes before the
Motion to Remand was filed, doesn’t satisfy her obligations.
On top of all that, it’s not even clear that Lopez’s counsel made the one measly call. Wells
Fargo’s attorney states, also under penalty of perjury, that he was in his office and available at
1:00 p.m. on August 29, and received no such call. Lopez didn’t file a reply brief, and hasn’t
disputed or otherwise explained Wells Fargo’s assertion. One way or another, it appears one
side is lying under oath. Other events in this case suggest which side it might be.
In any case, Lopez’s failure to satisfy Local Rule 7-3 can itself justify denying the Motion to
Remand. See Superbalife, Int’l v. Powerpay, CV 08-5099 PSG (PJWx), 2008 WL 4559752, at * 2
(N.D. Cal. Oct. 7, 2008) (denying a motion after the party violated Local Rule 7-3 and stating
that “absent any evidence that a party attempted to meet and confer in good faith, this Court
is unwilling to excuse noncompliance with the Local Rules”).
3.1.2 The Substance of the Motion to Remand
There are substantive issues with the Motion to Remand too. The Court raised many of the
issues discussed in the Motion to Remand in the Court’s OSC, and again in further detail at
the hearing on that OSC. At the hearing and later through its order discharging the OSC, the
Court considered and rejected the arguments Lopez now makes in the Motion to Remand.
Lopez wasn’t required to attend the hearing on the OSC. But had she done so, she would
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Date

Title

October 17, 2016

MARIA LOPEZ v. WELLS FARGO BANK, N.A.

have understood the problems with her Motion to Remand before filing that motion, despite
her failure to follow Local Rule 7-3. Put differently, Lopez had multiple opportunities to test
the waters on her Motion to Remand, and yet failed to do so.
3.2 The Motion to Dismiss
3.2.1 The Filing of the First Amended Complaint
There’s also a procedural problem with Lopez’s first amended complaint. This relates to the
27 days between the filings of the first motion to dismiss and the first amended complaint.
Under Federal Rule of Civil Procedure 15, a plaintiff essentially gets one freebie early on in a
case when it comes to filing an amended complaint. Specifically, “[a] party may amend its
pleading once as a matter of course,” without a court’s or opponent’s permission, “21 days
after serving [the pleading] or . . . if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases,
a party may amend its pleading only with the opposing party’s written consent or the court’s
leave.” Fed. R. Civ. P. 15(a)(2).
Here, Wells Fargo filed a motion under Rule 12(b)—the first motion to dismiss—on August
5. That means Lopez had until August 26 to file an amended pleading without the Court’s
leave or Wells Fargo’s written consent. Lopez missed that deadline and so needed to get
permission to file an amended complaint. Lopez didn’t though. Instead, Lopez unilaterally
and improperly filed her first amended complaint. Lopez’s failure to get permission justifies
dismissing the unauthorized first amended complaint here.
3.2.2 The Failure to Oppose the Motion to Dismiss

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Date

Title

October 17, 2016

MARIA LOPEZ v. WELLS FARGO BANK, N.A.

Even if the Court set aside that procedural problem (after all, the Court likely would have
given Lopez permission to file a first amended complaint had Lopez bothered to ask), there’s
still the issue of Lopez’ opposition to the Motion to Dismiss.
Under Local Rule 7-9, a party has to file opposition or a statement of non-opposition after
receiving a motion from the party’s opponent. C.D. Cal. L.R. 7-9. Under Local Rule 7-11,
courts can deem a party’s failure to file these required papers on time as that party’s consent
to granting the motion.
Lopez has now twice failed to timely file opposition to Wells Fargo’s motions to dismiss.
First, Lopez didn’t file any opposition to Wells Fargo’s initial motion to dismiss. Instead, the
day after Wells Fargo filed documents pointing out Lopez’s failure to file opposition, Lopez
filed the unauthorized first amended complaint. More recently, Lopez didn’t file opposition
to the pending Motion to Dismiss until a week after the deadline to do so had passed and
again right after Wells Fargo filed documents pointing out Lopez’s failure. These failures
justify dismissing the first amended complaint here.
3.3 Taken Together
Taken together, these problems justify the Court’s denial of the Motion to Remand and the
grant of the Motion to Dismiss. Parsed individually, one or two of Lopez’s procedural
problems might be excusable. But here, Lopez’s lawsuit has suffered a death by a thousand
self-inflicted cuts. Lopez’s actions reflect a plaintiff who, after dragging a defendant into
court, has largely abandoned her case. Her actions also reflect a plaintiff who only belatedly
and grudgingly participates in her case when prodded to do so by her more diligent
opponent—an opponent who may have greater urgency in resolving the supposed dispute
between the parties.
The silence here is deafening. It’s telling that Lopez doesn’t address any of her procedural
failures in her papers, despite having them pointed out to her. She hasn’t explained why she
didn’t respond to Wells Fargo’s efforts to satisfy Local Rule 7-3 before it filed its first motion
to dismiss. She hasn’t explained why she didn’t file an opposition to Wells Fargo’s first
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Date

Title

October 17, 2016

MARIA LOPEZ v. WELLS FARGO BANK, N.A.

motion to dismiss. She hasn’t explained why she didn’t seek the Court’s leave or Wells
Fargo’s written consent to file her first amended complaint. She hasn’t explained why she
didn’t satisfy Local Rule 7-3 before filing her Motion to Remand. She hasn’t explained why
she didn’t respond to Wells Fargo’s efforts to satisfy Local Rule 7-3 before it filed its nowpending Motion to Dismiss. She hasn’t explained why she failed to file an opposition to the
pending Motion to Dismiss until a week after the deadline. She hasn’t explained her
unacceptable failure to participate in the drafting of a Rule 26(f) joint report. She hasn’t
sufficiently explained what basis there was to remove the related unlawful detainer action to
federal court. The list goes on.
3.4 The Merits of the Motion to Dismiss
That’s not to say there aren’t also substantive reasons why Lopez loses here. The Court
hasn’t weighed in on the underlying merits of the Motion to Dismiss because it doesn’t need
to rule on those issues or the related request for judicial notice to reach its decision. But
recent decisions out of the Central District of California, including a recent decision by this
judge, support Wells Fargo’s arguments. In its Motion to Dismiss, Wells Fargo argues that
the federal Homeowner’s Loan Act (“HOLA”) preempts Lopez’s claims. In Goudie v. Wells
Fargo Bank, N.A., EDCV 15-0533 AG (DTBx) (C.D. Cal. June 8, 2015), this Court held that
HOLA preempted claims substantially similar to the ones here. Wells Fargo cites other
courts that have reached similar decisions. See, e.g., Campos v. Wells Fargo Bank, N.A., No.
EDCV 15-1200 JVS (DTBx), 2015 WL 5145520, at *1 (C.D. Cal. Aug. 31, 2015) (denying a
plaintiff’s motion to remand and granting Wells Fargo’s motion to dismiss claims similar to
those here). Again, Lopez’s silence says something. In her week-late opposition to the
Motion to Dismiss, she makes no attempt to address or distinguish these cases. Thus, there
might be even more reasons to grant the Motion to Dismiss.
3.5 Other Considerations
There are also questions of fundamental fairness. For example, it isn’t clear how long it’s
been since Lopez last made a mortgage payment on the property at issue. It isn’t clear that
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 16-1409 AG (KESx)

Date

Title

October 17, 2016

MARIA LOPEZ v. WELLS FARGO BANK, N.A.

Lopez is paying property taxes or utilities or other expenses on the property at issue. And it
isn’t clear that Lopez is paying for insurance on the property at issue. Although the Court
didn’t consider these questions here, the answers to these questions may further relieve any
concerns the Court has about disposing of a plaintiff’s lawsuit based largely on procedural
problems.
4. DISPOSITION
The Court DENIES the Motion to Remand and GRANTS the Motion to Dismiss. The
Court finds leave to amend is inappropriate under the applicable legal standard. See Telesaurus
VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). The Court will enter a simple
judgment for Wells Fargo and against Lopez.
:
Initials of
Preparer

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