Thrower v. Nationstar Mortgage, LLC et al
Filing
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MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 10/30/17 granting 3 Motion to Dismiss and denying 7 Motion to Remand. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo----
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ROBERTA THROWER,
Plaintiff,
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CIV. NO. 2:17-01627 WBS KJN
MEMORANDUM AND ORDER RE: MOTION
TO REMAND AND MOTION TO DISMISS
v.
NATIONSTAR MORTGAGE LLC; U.S.
BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR LEHMAN XS TRUST
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-4N
and DOES 1-10, inclusive.
Defendants.
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----oo0oo---Plaintiff Roberta Thrower brought this action against
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Nationstar Mortgage LLC (“Nationstar”) and U.S. Bank National
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Association (“U.S. Bank”) alleging multiple violations of state
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law arising out defendants’ alleged misconduct as plaintiff’s
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mortgage servicer and beneficiary of plaintiff’s debt obligation.
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The matter is now before the court on plaintiff’s Motion to
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remand this action to the California Superior Court for the
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County of Placer, where this action had originally been brought,
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(Pl.’s Mot. (Docket No. 7)), and defendants’ Motion to dismiss
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for failure to state a claim upon which relief can be granted
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pursuant to Federal Rule of Civil Procedure 12(b)(6).
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Mot. (Docket No. 3).)
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(Defs.’
In 2006, plaintiff obtained a mortgage loan on property
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in Rocklin, California, which was secured by a Deed of Trust
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listing GreenPoint Mortgage Funding, Inc. as the lender.
(Compl.
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¶ 20 (Docket No. 1).)
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of the Deed of Trust from GMAC Mortgage LLC to Aurora Loan
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Services LLC to Nationstar Mortgage, LLC, and finally to US BANK.
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(Compl. ¶ 21.)
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mortgage loan with Nationstar, US Bank, and Doe Defendants.
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(Compl. ¶ 25.)
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from Nationstar advising her that her request for modification
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was denied.
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appealed the denial and submitted all requested documents to
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Nationstar.
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There were several corporate assignments
Plaintiff attempted several times to modify her
On February 23, 2017, plaintiff received a letter
(Compl. ¶ 30.)
On March 21, 2017, plaintiff
(Compl. ¶ 31.)
On April 11, 2017, in a previous related action
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plaintiff filed a Complaint against defendants for: (1)
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declaratory relief; (2) negligence; (3) quasi contract; (4)
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violation of the Fair Debt Collection Practices Act (“FDCPA”);
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(5) accounting; (6) quiet title; (7) violation of the Unfair
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Competition Act California Business & Professions Code §§ 17200,
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et seq.; and (8) violation of 26 U.S.C. § 860G(d)(1).1
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The court
On September 1, 2017, the court found that the initial
action, 17-cv-00766, and the action now before the court, 17-v2
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granted defendants’ Motion to dismiss stating that plaintiff did
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not have standing to bring her claims.2
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On July 18, 2017, plaintiff filed a Complaint in state
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court alleging ten separate causes of action for: (1) violation
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of California Civil Code § 2923.6(A); (2) violation of California
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Civil Code § 2923.5; (3) violation of California Civil Code §
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2924.10; (4) violation of California Civil Code § 2924.17; (5)
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violation of California Civil Code § 2924.18; (6) violation of
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California Civil Code § 2923.6(c); (7) breach of implied covenant
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of good faith and fair dealing; (8) violation of the Unfair
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Competition Act California Business & Professions Code §§ 17200,
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et seq.; (9) quiet title; and (10) wrongful foreclosure.
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August 4, 2017, defendants removed the case under 28 U.S.C. §
On
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01627, were related within the meaning of Local Rule 123(a),
because both cases involve the same parties and are based on
similar claims, in that plaintiff in both cases is attempting to
block the foreclosure of her home and seeks to quiet title to the
same property. (Order Relating Cases at 1, Thrower v. Nationstar
Mortgage, Civ. No. 2:17-00766 WBS KJN (E.D. Cal. June 29, 2017)
(Docket No. 15.)). Having found that the cases were related
under Local Rule 123, the instant case was reassigned. Id.
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In the initial action, plaintiff alleged that the loan
was placed in a mortgage-backed securities trust, which was
governed by New York law. Thrower, 2017 WL 2813169, at *2. The
Trust allegedly had a closing date—the date by which all Notes
and Deeds of Trust must be transferred into the trust, and
because the Deed of Trust was not allegedly transferred to the
Trust by the closing date, plaintiff claimed the assignment was
invalid. Id. This court found the plaintiff did not have
standing to bring the action. This court explained that because
under New York and California law such an alleged violation “only
renders the assignment voidable and plaintiff was not a party to
the assignment, plaintiff did not have standing to challenge the
assignment of her Note and Deed of Trust into the 2006-4N Trust.”
Id. at *3 (citing Yvanova v. New Century Mortg. Corp., 62 Cal.
4th 919, 942-43 (2016)).
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1441(b) based on diversity jurisdiction under 28 U.S.C. § 1332.
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(Defs.’ Notice of Removal. (Docket No. 1).)
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to remand and defendants’ Motion to dismiss are now before the
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court.
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I.
Plaintiff’s Motion
Motion to Remand
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The plaintiff argues that removal was improper because
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removal is permitted only if a federal question appears on the
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face of the complaint, and because none of plaintiff’s causes of
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action pertain to a federal statute, the defendant cannot remove
(Pl.’s Mot. at 4 (Docket No. 7).)3
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the case to federal court.
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However, defendants’ notice of removal was based on diversity of
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citizenship jurisdiction.
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No. 1).)
(Defs.’ Notice of Removal at 1 (Docket
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Pursuant to 28 U.S.C. § 1441(a), “any civil action
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brought in a State court of which the district courts of the
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United States have original jurisdiction, may be removed by the
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defendant or the defendants . . . .”
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However, if “it appears that the district court lacks subject
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matter jurisdiction, the case shall be remanded.”
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1447(c).
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civil actions where the matter in controversy exceeds the sum or
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value of $75,000, exclusive of interest and costs, and is between
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citizens of different states . . . .” 28 U.S.C. § 1332.
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party asserting diversity jurisdiction bears the burden of proof.
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Resnik v. La Paz Guest Ranch, 289 F.2d 814, 819 (9th Cir. 1961)
28 U.S.C. § 1441(b).
28 U.S.C. §
District courts “have original jurisdiction of all
The
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Plaintiff does not respond to defendant’s diversity
jurisdiction assertion in her papers in support of her Motion to
remand nor in her opposition to the Motion to dismiss.
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To determine if the amount in controversy requirement
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is met, the court looks to the amount demanded by the plaintiff
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in the Complaint.
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Co., 303 U.S. 283, 291-92 (1938).
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specify the amount in controversy.4
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specify the amount in controversy, “the removing defendant bears
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the burden of establishing, by a preponderance of the evidence,
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that the amount in controversy exceeds [$75,000].”
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Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996).
See St. Paul Mercury Indem. Co. v. Red Cab
Here, plaintiff does not
When the complaint does not
Sanchez v.
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Defendants assert the amount-in-controversy requirement is met
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because the plaintiff received a first-lien mortgage in the
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amount of $360,000 secured by a Deed of Trust on the property and
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the assessed market value of the property is $378,000.
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Notice of Removal at 6.)
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(Defs.’
“In actions seeking declaratory or injunctive relief, .
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. . the amount in controversy is measured by the value of the
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object of the litigation.”
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Comm’n, 432 U.S. 333, 347 (1977) (citations omitted).
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plaintiff seeks both declaratory and injunctive relief.5
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Compl. Prayer for Relief A-T.)
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is the object of litigation.
Hunt v. Wash. St. Apple Advert.
Here,
(See
Furthermore, plaintiff’s property
See Reyes v. Wells Fargo Bank,
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In addition to declaratory and injunctive relief,
plaintiff seeks unspecified actual, compensatory, consequential,
and statutory damages as well. (Compl. Prayer for Relief A-T.)
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Plaintiff seeks declaratory and injunctive relief that
includes an order to modify the terms of the Mortgage Loan, to
rescind the Notice of Default, to restrain and enjoin defendants
from recording a Notice of Sale and foreclosing on the
plaintiff’s property, and for a permanent or final injunction
enjoining defendants from continuing to harm plaintiff.
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N.A., No. C-10-01667JCS, 2010 WL 2629785, at *4 (N.D. Cal. June
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29, 2010) (“If the primary purpose of a lawsuit is to enjoin a
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bank from selling or transferring property, then the property is
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the object of the litigation.”) (citations omitted).
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first-lien mortgage received by plaintiff was in the amount of
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$360,000.
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Civ. No. 10-161 MEJ, 2010 WL 761081, at *3 (N.D. Cal. Mar. 2,
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2010) (finding where plaintiffs seek injunctive relief to prevent
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foreclosure, the amount-in-controversy requirement was met when
(Compl. Ex. B)
Here, the
See Cabriales v. Aurora Loan Servs.,
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plaintiffs “obtained a loan, secured by a FIRST deed of trust, on
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the subject property . . .
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$465,000.”).
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this case is $378,000 (Compl. Ex. H.).
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Fargo Bank, 483 F.2d 1074, 1076 (9th Cir. 1973)6 (finding the
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amount-in-controversy requirement satisfied by looking at both
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the outstanding interest secured by the property and the market
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value of the property); Delgado v. Bank of Am. Corp., Civ. No.
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1:09-01638 AWI DLB, 2009 WL 4163525, at *6 (E.D. Cal. Nov. 23,
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2009) (Beck, J.) (appraisal of property establishing property was
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more than $75,000 met amount-in-controversy requirement).
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defendant has established that the amount in controversy is over
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$75,000.
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in the amount of approximately
Furthermore, the value of the property at issue in
See Garfinkle v. Wells
Thus,
Moreover, defendants assert, and plaintiff does not
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While Garfinkle looks at the since-modified amount-incontroversy requirement under 28 U.S.C. § 1331, the analysis is
still relevant. Courts such as Reyes v. Wells Fargo Bank, N.A,
Civ. No. 10-01667 JCS, 2010 WL 2629785, at *4 (N.D. Cal. June 29,
2010), have used the analysis of Garfinkle to discuss diversity
amount-in-controversy requirements under 28 U.S.C. § 1332.
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dispute, that Nationstar is a citizen of Delaware and US Bank is
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a citizen of Ohio, and that plaintiff is a citizen of California.
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Thus, there is complete diversity.
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Because the amount in controversy is satisfied and
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there is diversity of citizenship, defendants properly removed
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this action to federal court, and the court will deny plaintiff’s
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Motion to remand.7
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II.
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Motion to Dismiss
Defendants argue plaintiff’s foreclosure lawsuit
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against defendants is barred by res judicata.8
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raise res judicata in a motion to dismiss under Federal Rule
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12(b)(6). See Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.
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1984).
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raised or could have been raised” in a prior action.
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U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (citations
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omitted). “Res judicata applies when there is: (1) an identity of
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claims; (2) a final judgment on the merits; and (3) identity or
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privity between parties.”
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A defendant may
Res judicata prohibits lawsuits on “any claims that were
Stewart v.
Id. (internal quotations omitted).
Defendants argue that although the claims asserted in
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each suit are not identical, there is an identity of claims
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between the two suits because the two suits arise out of the same
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The court does not consider the diversity of “Doe”
defendants in examining whether there is diversity. See 28
U.S.C. 1441(a) (“For purposes of removal under this chapter, the
citizenship of defendants sued under fictitious names shall be
disregarded.”); Newcombe v. Adolf Coors Co., 157 F.3d 686, 690
(9th Cir. 1998) (explaining district courts should only consider
the domicile of named defendants).
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Plaintiff does not address defendants’ argument that
res judicata bars this suit.
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transactional nucleus of facts.9
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further contend the second Complaint’s allegation of additional
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tortious conduct and other facts not included in the initial
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action do not sufficiently avoid the bar of res judicata.
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In determining whether there is an identity of claims for the
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purposes of res judicata, the court considers:
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(Id.)
Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th
Cir. 1982) (quoting Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.
1980)). The last criteria is the most important.
Id. at 1202.
“Whether two suits arise out of the same transactional
nucleus depends upon whether they are related to the same set of
facts and whether they could conveniently be tried together.”
Turtle Island Restoration Network v. U.S. Dep’t of State, 673
F.3d 914, 918 (9th Cir. 2012) (quoting ProShipLine Inc. v. Aspen
Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir. 2010)).
“Where
claims arise from the same factual circumstances, a plaintiff
must bring all related claims together or forfeit the opportunity
to bring any omitted claim in a subsequent proceeding.”
Id.
In both suits, plaintiff brought a wrongful foreclosure
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Defendants
(1) whether rights or interests established in the prior
judgment would be destroyed or impaired by prosecution of
the second action; (2) whether substantially the same
evidence is presented in the two actions; (3) whether the
two suits involve infringement of the same right; and (4)
whether the two suits arise out of the same transactional
nucleus of facts.
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(Defs. Mot. at 4.)
complaint against the same defendants based on the same pending
non-judicial foreclosure of the same property.
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In the current
Both lawsuits involve only two identical claims, quiet
title and violation of California Business and Professions Code §
17200.
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action plaintiff alleges new facts, additional tortious conduct,
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and emphasizes the failure of the defendant to modify the
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mortgage foreclosure terms, while in the initial action, she
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emphasized the failure of defendants to transfer the Deed of
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Trust to the 2006-4N Trust by the closing date, allegedly making
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the assignment invalid.
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2813169, at *2.)
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facts that all arise from the same allegedly wrongful foreclosure
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of the plaintiff’s property by the same defendants is not enough
(See Compl. ¶ 25; Thrower, 2017 WL
However, asserting additional claims and new
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to overcome res judicata, because these additional claims and
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facts could have been brought in the initial suit.
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rel. Barajas v. Northrop Corp., 147 F.3d 905, 909 (9th Cir. 1998)
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(“It is immaterial whether the claims asserted subsequent to the
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judgment were actually pursued in the action that led to the
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judgment; rather, the relevant inquiry is whether they could have
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been brought.”)(citation omitted).
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See U.S. ex
Additionally, the facts relevant to this case-the
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assignments of the Deed of Trust and the request and eventual
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denial to modify her mortgage loan-were all evident when the
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initial suit was filed.
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Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1078-80 (9th Cir.
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2003) (finding the claims asserted arose from the same
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transactional nucleus of facts and thus an identity of claims
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where plaintiff filed a new action seeking relief from the same
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alleged wrongs as the first suit and the facts relevant to the
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subsequent action were all evident when the initial litigation
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was filed and there were no new facts relevant to the new cause
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of action).
See Tahoe-Sierra Pres. Council, Inc. v.
Plaintiff does not argue the new claims brought in
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the subsequent action could not have been brought in the initial
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action.
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claims at issue were not evident by the time this suit was filed.
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Moreover, the last alleged fact in the Complaint at issue
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occurred March 21, 2017.
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11, 2017.
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could have been alleged in the initial Complaint.
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Nor does plaintiff assert the facts relevant to the new
The initial Complaint was filed April
Therefore, every fact alleged in the current Complaint
Plaintiff cannot avoid the bar of res judicata by
alleging additional conduct by the same defendants or by pleading
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a new legal theory.
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(“[A]ppellant does not avoid the bar of res judicata merely
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because he now alleges conduct by [the same defendant] not
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alleged in his prior suit, nor because he has pleaded a new legal
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theory.”); Tahoe-Sierra Pres. Council, Inc., 322 F.3d at 1078
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(“Newly articulated claims based on the same nucleus of facts may
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still be subject to a res judicata finding if the claims could
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have been brought in the earlier action.”).
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identity of claims between the prior lawsuit and the current
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lawsuit because the claims arise out of the same nucleus of facts
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and the additional claims and facts could have been raised in the
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first suit.
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See Costantini, 681 F.2d at 1201
Thus, there is an
Further, there is no dispute as to the other res
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judicata factors.
As to whether the first suit was a final
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judgment on the merits, the court granted defendants Motion to
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dismiss for failure to state a claim and dismissed plaintiff’s
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claims with prejudice based on lack of standing.
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WL 2813169, at *2.
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judgment on the merits.
Thrower, 2017
A dismissal with prejudice is a final
See Stewart, 297 F.3d 953 at 956.
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(“The
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phrase ‘final judgment on the merits’ is often used
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interchangeably with ‘dismissal with prejudice’”) (citations
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omitted); Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394,
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399 n.3 (1981) (“The dismissal for failure to state a claim under
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Federal Rule of Civil Procedure 12(b)(6) is a judgment on the
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merits.”)(internal quotations and citations omitted).
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the parties in the first suit and the second suit are the same.
Moreover,
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For the above mentioned reasons, res judicata bars
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plaintiff’s claims in the present action, and the court will
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grant the motion to dismiss.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion to
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remand this action to the California Superior Court for the
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County of Placer be, and the same hereby is, DENIED.
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IT IS FURTHER ORDERED that defendants’ Motion to
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dismiss be, and the same hereby is, GRANTED.
Because plaintiff’s
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claims are barred by res judicata, giving leave to amend the
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Complaint would be futile.
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hereby DISMISSED WITH PREJUDICE.
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Dated:
Accordingly, plaintiff’s Complaint is
October 30, 2017
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