Federal Deposit Insurance Corporation v. Varrasso et al

Filing 37

MEMORANDUM and ORDER signed by Judge William B. Shubb on 1/20/12: 29 Motion to dismiss plaintiff's claims for negligence and negligent misrepresentation be, and the same hereby is, DENIED; and motion to strike be, and the same hereby is, GRANTED in part as to plaintiff's request for attorney's fees and DENIED in part as to Item 1 of plaintiff's prayer for relief. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 15 16 NO. CIV. 2:11-2628 WBS CKD FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for INDYMAC BANK, F.S.B., MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND MOTION TO STRIKE Plaintiff, v. 20 RICHARD K. VARRASSO doing business as Richard Varrasso and Associates and AppraisalTrust.com, an individual; PREMIER VALLEY, INC. doing business as CENTURY 21 M&M ASSOCIATES, a California corporation; and KAREN BHATTI, an individual, 21 Defendants. 17 18 19 / 22 23 24 ----oo0oo---Plaintiff Federal Deposit Insurance Corporation 25 (“FDIC”) as Receiver for Indymac Bank, F.S.B. (“Indymac”) brought 26 this action against defendants Richard K. Varrasso, doing 27 business as Richard Varrasso and Associates and 28 AppraisalTrust.com, Premier Valley, Inc. (“Premier”), doing 1 1 business as Century 21 M&M Associates, and Karen Bhatti, arising 2 out of defendants’ allegedly wrongful misrepresentations 3 regarding the purchase of two residential properties. 4 before the court is Premier and Bhatti’s motion to dismiss 5 plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 6 12(b)(6) for failure to state a claim upon which relief can be 7 granted and motion to strike portions of plaintiff’s Complaint 8 pursuant to Rule 12(f). 9 I. Presently Factual and Procedural Background Between March 16, 2006, and October 18, 2006, the 10 11 property located at 2009 Saint Theresa Way in Modesto, California 12 (the “Weisbly Property” or “Property”) was listed for sale on the 13 Multiple Listing Service (“MLS”) for different prices between 14 $439,000 and $469,000. 15 was finalized during this period. 16 the Property was Bhatti, who was employed by Premier. 17 (Compl. ¶ 9.) No sale of the Property (Id.) The listing agent on (Id.) On October 26, 2006, a purchase contract was signed for 18 the Property in the amount of $499,000. 19 alleges that subsequent to the purchase contract being signed, 20 Bhatti re-listed the Property on MLS for $499,000 on November 13, 21 2006. 22 (Id. ¶ 10.) Plaintiff (Id.) On October 28, 2006, Varrasso appraised the Weisbly 23 Property for $520,000. 24 buyer’s lender, Kay-Co Investments, doing business as PRO30 25 Funding (“Kay-Co”) to conduct the appraisal. 26 (Id. ¶ 12.) Varrasso was hired by the (Id. ¶ 24.) On December 15, 2006, Kay-Co funded and subsequently 27 sold to Indymac two mortgages totaling $499,000 for the Property 28 (a first mortgage of $399,200 and a second mortgage of $99,800) 2 1 (the “Weisbly Loans”). (Id. ¶ 11.) The HUD-1 Settlement 2 Statement1 indicates a proration date of December 18, 2006. 3 (DeLeon Decl. Ex. A (Docket No. 29).) 4 Statement for the Weisbly Loans indicates that the commissions 5 paid to Bhatti and Premier were calculated based upon a sales 6 price of $449,000, not the loan amount of $499,000. 7 ¶ 13.) 8 percentage-based commission, an additional $25,000 of the loan 9 proceeds were paid directly to Bhatti. The HUD-1 Settlement (Compl. The HUD-1 also indicates that, in addition to her (Id. ¶ 14.) On July 11, 2008, pursuant to Order 2008-24 issued by 10 11 the Office of Thrift Supervision, IndyMac was closed and the FDIC 12 was appointed as receiver. 13 IndyMac’s legal claims were retained by or transferred to the 14 FDIC. 15 (Opp’n to Mot. to Dismiss at 11:7-8.) (Compl. ¶ 1.) Plaintiff filed its Complaint in the Northern District 16 of California on July 6, 2011, alleging six claims for relief. 17 The court subsequently transferred the case to the Eastern 18 District of California after finding that the interests of 19 20 21 22 23 24 25 26 27 28 1 When deciding a motion to dismiss, a court may not ordinarily consider material other than the facts alleged in the complaint. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996) (“A motion to dismiss . . . must be treated as a motion for summary judgment . . . if either party . . . submits materials outside the pleadings in support or opposition to the motion, and if the district court relies on those materials.”). “A court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Premier and Bhatti attached a copy of the HUD-1 Settlement statement as an exhibit to their motion to dismiss. As the existence of the HUD1 Settlement Statement is alleged in the Complaint, is central to plaintiff’s claims, and neither party has questioned its authenticity, the court may consider the HUD-1 Settlement Statement as part of the Complaint. 3 1 convenience and justice weighed in favor of the transfer. 2 (Docket No. 24.) 3 named in the third and fourth claims: a state law claim of 4 negligence and a state law claim of negligent misrepresentation. 5 (Compl. ¶¶ 33-44.) 6 claims against them and to strike plaintiff’s request for 7 attorney’s fees and Item 1 from plaintiff’s prayer for damages. 8 II. The moving defendants, Premier and Bhatti, are Premier and Bhatti now move to dismiss both Discussion On a motion to dismiss, the court must accept the 9 10 allegations in the complaint as true and draw all reasonable 11 inferences in favor of the plaintiff. 12 U.S. 232, 236 (1974), overruled on other grounds by Davis v. 13 Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 14 (1972). 15 “only enough facts to state a claim to relief that is plausible 16 on its face.” 17 (2007). 18 than a sheer possibility that a defendant has acted unlawfully,” 19 Ashcroft v. Iqbal, 556 U.S. 662, ––––, 129 S. Ct. 1937, 1949 20 (2009), and “[w]here a complaint pleads facts that are ‘merely 21 consistent with’ a defendant’s liability, it ‘stops short of the 22 line between possibility and plausibility of entitlement to 23 relief.’” 24 25 A. Scheuer v. Rhodes, 416 To survive a motion to dismiss, a plaintiff must plead Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 This “plausibility standard,” however, “asks for more Id. (quoting Twombly, 550 U.S. at 557). Negligence Claim (Third Claim) To prove a cause of action for negligence, plaintiff 26 must show “(1) a legal duty to use reasonable care, (2) breach of 27 that duty, and (3) proximate cause between the breach and (4) the 28 plaintiff’s injury.” Mendoza v. City of Los Angeles, 66 Cal. 4 1 App. 4th 1333, 1339 (2d Dist. 1998). 2 duty to use reasonable care in a particular factual situation is 3 a question of law for the court to decide.” 4 Residential Invs., Inc., 118 Cal. App. 4th 269, 278 (4th Dist. 5 2004). 6 “The existence of a legal Vasquez v. The parties have presented no authority, and the court 7 is aware of none, that directly addresses the duties a seller’s 8 real estate agent owes to subsequent purchasers of loans 9 regarding which they have made material misrepresentations. 10 California cases do recognize a fundamental duty on the part of a 11 realtor to deal honestly and fairly with all parties in a real 12 estate transaction. 13 725, 735 (1st Dist. 1988). 14 representation of the sale price of the Property on the HUD-1 15 Settlement Statement was made directly to Kay-Co, the original 16 lender. 17 transaction in question. The parties agreed at oral arguments 18 that Premier and Bhatti owed a legal duty to deal fairly and 19 honestly with Kay-Co, as a party to the transaction. 20 See, e.g., Nguyen v. Scott, 206 Cal. App. 3d Defendants’ allegedly false Kay-Co was therefore a party to the real estate Upon sale of the Weisbly Loans, the rights underlying 21 the loan were transferred from Kay-Co to IndyMac, as the 22 subsequent purchaser of the loans. 23 whether Premier and Bhatti’s duty to deal fairly and honestly 24 with Kay-Co was thereupon transferred to IndyMac. 25 alleges in its Complaint that IndyMac purchased the Weisbly Loans 26 from Kay-Co. 27 court accordingly infers that when IndyMac purchased the Weisbly 28 Loans from Kay-Co, all of Kay-Co’s rights and duties under the The question, therefore, is Plaintiff For the purposes of this motion to dismiss, the 5 1 loan were assigned to IndyMac. Although not every right is 2 assignable, assignability is the general rule and 3 nonassignability is the exception. 4 62 Cal. App. 3d 389, 393 (2d Dist. 1976) (noting that only causes 5 of action for personal injuries arising out of a tort and those 6 founded upon wrongs of a purely personal nature are not 7 assignable); see also Cal. Civ. Code § 1458 (“A right arising out 8 of an obligation is the property of the person to whom it is due, 9 and may be transferred as such.”). Goodley v. Wank & Wank, Inc., As the purchaser of the 10 Weisbly Loans, IndyMac stepped into the shoes of Kay-Co and is 11 entitled to assert any claims arising out of the initial real 12 estate transaction. 13 4th 1087, 1096 (5th Dist. 2003) (“The assignment merely transfers 14 the interest of the assignor. 15 of the assignor, taking [its] rights and remedies . . . .”) 16 (citations omitted). 17 Johnson v. Cnty. of Fresno, 111 Cal. App. The assignee ‘stands in the shoes’ Plaintiffs argue that permitting subsequent purchasers 18 to assert claims would unduly expand real estate agents’ 19 liability. 20 Agents remain liable to a single party -- the owner of the loan - 21 - rather than an infinite number of parties. 22 result, as transferring agents’ duties to the assignee of the 23 loan preserves the liability of real estate agents for their 24 representations during the formation of the loans to whomever 25 currently owns the loans. 26 subsequent purchasers of mortgage loans a remedy for fraudulent 27 or negligent conduct during the initial loan transaction. 28 would give participants in mortgage fraud a free pass for their Such an expansion of liability would not result. This is a desirable To hold otherwise would be to deprive 6 This 1 conduct the moment the loan is sold, a practice which has become 2 increasingly common. 3 on the subject, it would seem to the court that the parties to a 4 real estate transaction owe a duty of honesty not only to the 5 lender but to future purchasers of the real estate loan as well. 6 In light of the absence of specific caselaw Even without finding that IndyMac inherited Kay-Co’s 7 claims resulting from the transaction, the moving defendants 8 could still be held liable based on their general duty to third 9 parties to the loan transaction. “There is little question that 10 a real estate broker owes a duty of care to third persons in the 11 transaction, where the broker does not have privity with, or 12 fiduciary duties to, such third person. 13 extent of that duty that will be imposed on the broker.” 14 Norman I. Krug Real Estate Invs., Inc. v. Praszker, 220 Cal. App. 15 3d 35, 42 (1st Dist. 1990) (quoting 2 Miller & Starr Cal. Real 16 Estate § 3.27 (2d ed. 1989)). 17 defendant will be held liable to a third person not in privity 18 with the defendant is made by weighing a number of factors, 19 including “the extent the transaction was intended to affect the 20 third party, the foreseeability of harm, the degree of certainty 21 the third party suffered injury, the moral blame attached to the 22 broker’s conduct, and the policy of preventing future harm.” 23 Id.; see also Merrill v. Buck, 58 Cal. 2d 552, 562 (1962) 24 (outlining similar factors and also including the closeness of 25 the connection between the defendant’s conduct and the injury 26 suffered). 27 28 The question is the The determination of whether a Under the first factor, the extent the transaction was intended to affect the third party, Premier and Bhatti’s 7 1 representations of the Property’s purchase price were clearly 2 meant to influence Kay-Co’s loan determination. 3 likelihood that the loan would be sold to a third party, as 4 evidenced both by industry practice and by the fact that the loan 5 in question was sold by Kay-Co on the very day that it was 6 funded, the moving defendants’ representations were used to 7 create a product (the Weisbly Loans) that would foreseeably be 8 sold and resold over the course of its life. 9 Bhatti’s alleged misrepresentations were an important input into Given the Premier and 10 the subsequent loan product that would affect each subsequent 11 purchaser of the loan product. 12 Co, coupled with the foreseeability that the loan would 13 subsequently be sold to a third party, suggests that they 14 intended the transaction to affect subsequent purchasers of the 15 loan. 16 the court finds that Premier and Bhatti intended to affect the 17 current lender as well as subsequent purchasers of the loan when 18 they reported the purchase price of the property on the HUD-1 19 Settlement Statement. 20 Defendants’ intent to affect Kay- Drawing all reasonable inferences in favor of plaintiff, With respect to the second factor, foreseeability of 21 harm, California courts have de-emphasized the importance of 22 foreseeability in liability analysis, noting that it is not a 23 substitute for legal duty, Burger v. Pond, 224 Cal. App. 3d 597, 24 606 (4th Dist. 1990), and is only one factor in determining 25 negligence liability, Bily v. Arthur Young & Co., 3 Cal. 4th 370, 26 398-99 (1992). 27 judicial days on which a court can foresee forever and thus 28 determine liability but none on which that foresight alone “Experience has shown that . . . there are clear 8 1 provides a socially and judicially acceptable limit on recovery 2 of damages for that injury.” 3 668 (1989). 4 degree of certainty factors weigh in their favor because 5 plaintiff’s injury is several steps removed from the transaction. 6 The fact that IndyMac was one step removed from the transaction 7 does not establish lack of foreseeability if it was reasonably 8 foreseeable that the real estate loan would be re-sold. 9 Plaintiff noted in oral arguments that the Weisbly Loan documents 10 specifically state the loan could be sold to a new loan company, 11 which is common industry practice. 12 favor of plaintiff on this motion to dismiss, the factor of 13 foreseeability weighs in favor of plaintiff. Thing v. La Chusa, 48 Cal. 3d 644, Premier and Bhatti argue that foreseeability and the Drawing all inferences in The third factor, degree of certainty the third party 14 15 would suffer injury, similarly weighs in favor of plaintiff. 16 Given the foreseeability of the loan’s transfer, the fact that 17 the loan totaled $50,000 more than the actual purchase price 18 creates a reasonably certain risk that the subsequent owner of 19 the loan would suffer harm. The fourth factor, moral blame, and the fifth factor, 20 21 the public policy of preventing future harm and discouraging 22 misrepresentations in loan transactions, also weigh in favor of 23 plaintiff. 24 from those of the defendants in Rainer v. Grossman, 31 Cal. App. 25 3d 539 (2d Dist. 1973), on which defendants rely heavily. 26 Rainer, plaintiff’s treating physician presented the defendant 27 physician with plaintiff’s medical history and sought advice 28 regarding how to treat plaintiff. Premier and Bhatti’s actions can be distinguished 9 Id. at 541. In Plaintiff sued 1 defendant after undergoing an unsuccessful surgery. 2 court held that defendant could not be found liable for 3 negligence after finding that the defendant did not engage in any 4 morally blameworthy behavior and the value to the medical 5 community and the public of facilitating discussion and 6 consultation between physicians was significant and should not be 7 discouraged. 8 and pressing public policy suggesting that imposing a duty would 9 be inappropriate in the present case. 10 Id. at 544. Id. The There is no such lack of moral blame Premier and Bhatti argue that allowing lending 11 institutions to bring lawsuits against brokers based on purchase 12 price misrepresentations years after the transaction would 13 encourage lenders to make financially risky investments and be 14 against public policy. 15 risky, however, had the lender been provided with factually 16 correct information in the first instance. 17 imposed, parties to a real estate transaction will be free to 18 engage in misrepresentations without liability so long as the 19 loan is subsequently sold to a third party. 20 strong public policy in favor of discouraging agents in a real 21 estate transaction from falsely providing material information to 22 lenders, whether it is by honest mistake or influenced by the 23 opportunity for financial gain, and providing injured parties 24 with a remedy when such misrepresentations do occur. 25 blame in such transactions similarly lies with the party that 26 provided the misrepresentations. 27 28 This investment would have been less Unless a duty is Instead, there is a The moral The factors outlined above weigh in favor of finding that Premier and Bhatti owe a duty to plaintiff as a third party 10 1 to the real estate transaction at issue. 2 will deny Premier and Bhatti’s motion to dismiss plaintiff’s 3 claim for negligence. 4 B. Accordingly, the court Negligent Misrepresentation Claim (Fourth Claim) 5 The elements of negligent misrepresentation under 6 California law are: “(1) the misrepresentation of a past or 7 existing material fact, (2) without reasonable ground for 8 believing it to be true, (3) with intent to induce another’s 9 reliance on the fact misrepresented, (4) justifiable reliance on 10 the misrepresentation, and (5) resulting damage.” 11 Fund, LLC v. Roth Capital Partners, LLC, 158 Cal. App. 4th 226, 12 243 (2d Dist. 2007). 13 Apollo Capital In order to state a claim for negligent 14 misrepresentation, plaintiff must plead that Premier and Bhatti’s 15 misrepresentation was made with the intent to induce reliance on 16 the representation. 17 (1954). 18 claims, then intent to induce reliance is clearly established. 19 Premier and Bhatti’s representations were made with the intent to 20 influence the lender to make a loan based on the purchase price 21 of the Weisbly Property being $499,000 instead of $449,000. 22 See Gagne v. Bertran, 42 Cal. 2d 481, 488 If, as discussed above, plaintiff was assigned Kay-Co’s Even if plaintiff was not assigned Kay-Co’s claims, 23 suppliers of information can also be liable for negligent 24 misrepresentation to third parties. 25 noted in Bily that, “a supplier of information is liable for 26 negligence to a third party only if he or she intends to supply 27 the information for the benefit of one or more third parties in a 28 specific transaction or type of transaction identified to the 11 The California Supreme Court 1 supplier.” 2 investors sued an auditing company for negligent 3 misrepresentation, claiming that they relied upon the audit 4 reports when deciding whether to make an investment in the 5 audited company. 6 be held liable for negligent misrepresentation to third parties 7 who are known to the auditor (even if their individual identities 8 are unknown) because the audits were also intended to benefit 9 investors. 10 Bily, 3 Cal. 4th at 392. Id. at 377. In Bily, a group of The court held that an auditor may Id. at 408. “It is not necessary for the supplier of information to 11 have any particular person in mind as the intended, or even 12 probable, recipient of the information. 13 the maker of the information intends it to reach and influence a 14 class of persons who might reasonably be expected to take some 15 action in reliance on the information.” 16 Inc., No. CV 11-05318, 2011 WL 4550831, at *3 (C.D. Cal. Sept. 17 28, 2011) (citing Soderberg v. McKinney, 44 Cal. App. 4th 1760, 18 1768–69 (2d Dist. 1996)). 19 business of investing in real estate loans, IndyMac was part of 20 the class of persons who could reasonably be expected to rely on 21 the reported purchase price of a loan in determining whether to 22 invest in the loan. 23 reasonable inferences in favor of plaintiff, the court finds that 24 the moving defendants intended to influence the original lender 25 as well as subsequent purchasers of the loan in reporting the 26 purchase price of the property. 27 28 It is sufficient that F.D.I.C. v. GB Escrow, As a lending institution in the As discussed above and drawing all The element of justifiable reliance also requires that a plaintiff “acted in reliance upon the truth of the 12 1 representation.” 2 2680483, at *9 (S.D. Cal. July 8, 2011) (emphasis added). 3 Plaintiff alleges that “INDYMAC was damaged because it relied 4 upon the representation made by PREMIER VALLEY and BHATTI in 5 making the decision to purchase the WEISBLY LOAN.” 6 ¶ 44.) 7 plaintiff acted in reliance upon the truth of the representation. 8 Accordingly, the court will deny Premier and Bhatti’s motion to 9 dismiss plaintiff’s claim for negligent misrepresentation. 10 11 C. Nero v. Evans, Civ. No. 09-958, 2011 WL (Compl. Plaintiff’s pleadings are sufficient to establish that Statute of Limitations A statute of limitations defense “may be raised by a 12 motion for dismissal or by summary judgment motion.” Jablon v. 13 Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). “If the 14 running of the statute is apparent on the face of the complaint, 15 the defense may be raised by a motion to dismiss.” 16 Id. Plaintiff’s action was filed in July 2011, while many 17 of the events giving rise to the claim occurred in late 2006. 18 Premier and Bhatti have accordingly challenged plaintiff’s claims 19 as being time-barred. 20 should apply a two-year statute of limitations, which is the 21 applicable statute of limitations for both the negligent 22 performance of professional services and negligent 23 misrepresentation by a professional. 24 § 339(a); Hydro-Mill Co. Inc. v. Hayward, Tilton & Rolapp Ins. 25 Assocs., 115 Cal. App. 4th 1145, 1159 (2d Dist. 2004) (applying 26 two-year statute of limitations to professional negligence 27 claim); Ventura Cnty. Nat’l Bank v. Macker, 49 Cal. App. 4th 28 1528, 1530-31 (2d Dist. 1996) (applying two-year statute of The moving defendants argue that the court 13 See Cal. Code Civ. Proc. 1 limitations to negligent misrepresentation claim raised against 2 an accounting professional). 3 Premier and Bhatti argue that the facts constituting 4 negligence and misrepresentation should have been apparent to 5 Kay-Co, and thus IndyMac, on December 18, 2006, which the HUD-1 6 Settlement Statement indicated was the proration date. 7 Defendants thus argue that the statute of limitations to raise 8 claims relating to the Weisbly Loans expired on December 18, 9 2008, more than two years before plaintiff filed the present 10 11 suit. California law supplies the statue of limitations to 12 be applied in a diversity action on state law claims. Walker v. 13 Armco Steel Corp., 446 U.S. 740, 752-53 (1980). 14 jurisdiction in the present case is not predicated on diversity 15 jurisdiction, but rather on the court’s original jurisdiction to 16 hear suits in which the FDIC is a party. 17 § 1819(b)(2)(A). 18 tort claim brought by the FDIC as a conservator or receiver is 19 the longer of the three-year period beginning on the date the 20 claim accrues or the period applicable under state law. 21 § 1821(d)(14)(A)(ii).2 22 limitations begins to run on any claim . . . shall be the later 23 of: (I) the date of the appointment of the [FDIC] as conservator 24 or receiver; or (ii) the date on which the cause of action However, 12 U.S.C. The applicable statute of limitations for a Id. “[T]he date on which the statute of 25 26 27 28 2 “[T]he applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be in the case of any tort claim . . . , the longer of (I) the 3-year period beginning on the date the claim accrues; or (II) the period applicable under State law.” 12 U.S.C. § 1821(d)(14)(A)(ii). 14 1 accrues.” 2 Id. § 1821(d)(14)(B). Here, the FDIC was appointed as the receiver of IndyMac 3 on July 11, 2008, pursuant to Order No. 2008-24 issued by the 4 Office of Thrift Supervision. 5 10.) 6 tort claims on behalf of IndyMac therefore expired on July 11, 7 2011. 8 was filed within the statute of limitations for tort claims 9 raised by the FDIC as a receiver. (Opp’n to Mot. to Dismiss at 11:7- The three-year statute of limitations for the FDIC to raise The present suit was filed on July 6, 2011, and therefore Even if Premier and Bhatti are 10 correct that the state law statute of limitations expired on 11 plaintiff’s claims on December 18, 2008, the claims did not 12 expire prior to the FDIC being appointed the receiver of IndyMac. 13 Premier and Bhatti further argue that where the facts 14 giving rise to the complaint occurred several years before the 15 complaint was filed, the plaintiff is obligated to “plead around” 16 and show facts demonstrating why the statute of limitations does 17 not apply. 18 plaintiff did not include the date on which the FDIC became the 19 receiver for IndayMac in the Complaint, defendants claim that it 20 was not evident from the face of the Complaint that the statue of 21 limitations had not expired. 22 reliance on Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 23 899 (7th Cir. 2004), to show that plaintiff was required to 24 “plead around” the statute of limitations defense is misplaced. 25 The court in Xechem explicitly states that “plaintiffs need not 26 anticipate and attempt to plead around all potential defenses.” 27 Id. at 901. 28 statute of limitations in their complaint where the statute of (Reply to Mot. to Dismiss at 5:16-19.) (Id. at 5:19-25.) Since Defendants’ Plaintiffs are required to “plead around” the 15 1 limitations has expired and the plaintiff is claiming an 2 exception to the statute of limitations such as tolling or 3 delayed discovery. 4 F.2d 1395, 1397 (9th Cir. 1991) (delayed discovery); 389 Orange 5 Street Partners v. Arnold, 179 F.3d 656, 662 (9th Cir. 1999) 6 (fraudulent concealment). 7 See Gen. Bedding Corp. v. Echevarria, 947 Here, plaintiff is not arguing that the statute of 8 limitations should be extended for its claims, but rather that 9 defendants applied the wrong statue of limitations when they 10 relied on the state law statute of limitations. 11 have avoided confusion if plaintiff had affirmatively plead the 12 date when the FDIC was appointed the receiver of IndyMac, there 13 is no authority presented indicating that plaintiff was required 14 to do so. 15 dismiss Premier and Bhatti’s claims based upon the statute of 16 limitations. 17 D. 18 While it would Accordingly, the court will deny defendants’ motion to Motion to Strike Federal Rule of Civil Procedure 12(f) enables the court 19 to “strike from a pleading . . . any redundant, immaterial, 20 impertinent, or scandalous matter.” 21 motion to strike “should not be granted unless it is clear that 22 the matter to be striken could have no possible bearing on the 23 subject matter of the litigation.” 24 Supp. 708, 713 (N.D. Cal. 1996). 25 Fed. R. Civ. P. 12(f). Lilley v. Charren, 936 F. Premier and Bhatti move to strike plaintiff’s request 26 for attorney’s fees. 27 (Opp’n to Mot. to Dismiss at 12:3-6.) 28 A Plaintiff agrees to strike this request. Premier and Bhatti also move to strike Item 1 of 16 1 plaintiff’s prayer for relief of $587,082.32 in damages. This 2 figure appears to be the sum of all special damages alleged 3 against all defendants on all causes of action. 4 at 12:10-11.) 5 defendants, the inclusion of damages for both properties is 6 proper. 7 strike Item 1 of plaintiff’s prayer for relief. (Mot. to Dismiss As the prayer for relief is against all Accordingly, the court will deny defendants’ motion to IT IS THEREFORE ORDERED that Premier and Bhatti’s 8 9 motion to dismiss plaintiff’s claims for negligence and negligent 10 misrepresentation be, and the same hereby is, DENIED; and Premier 11 and Bhatti’s motion to strike be, and the same hereby is, GRANTED 12 in part as to plaintiff’s request for attorney’s fees and DENIED 13 in part as to Item 1 of plaintiff’s prayer for relief. 14 DATED: January 20, 2012 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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