Sowinski v. Wells Fargo Bank, N.A.

Filing 37

Order by Hon. Samuel Conti granting 18 Motion to Dismiss and denying 19 Motion to Expunge Lis Pendens.(sclc2, COURT STAFF) (Filed on 11/26/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 RICHARD SOWINSKI, Plaintiff, 10 For the Northern District of California United States District Court 9 v. 11 12 WELLS FARGO BANK, N.A., and DOES 1-10, 13 Defendants. 14 15 I. 16 ) ) ) ) ) ) ) ) ) ) ) Case No. 11-6431-SC ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO EXPUNGE LIS PENDENS INTRODUCTION Plaintiff Richard Sowinski ("Plaintiff") challenges Defendant 17 Wells Fargo Bank, N.A.'s ("Wells") foreclosure of his residential 18 mortgage and the subsequent trustee sale of his residence. 19 December 2, 2011, Plaintiff filed a complaint in California 20 Superior Court, which Wells timely removed to this Court. 21 1 (notice of removal) Ex. A (complaint). 22 Plaintiff recorded a lis pendens1 against the subject property. On ECF No. Also on December 2, 23 24 25 26 27 28 1 "A lis pendens is recorded by someone asserting a real property claim, to give notice that a lawsuit has been filed which may, if that person prevails, affect title to or possession of the real property described in the notice." Fed. Deposit Ins. Corp. v. Charlton, 17 Cal. App. 4th 1066, 1069 (Cal. Ct. App. 1993). "Once a lis pendens is filed, it clouds the title and effectively prevents the property's transfer until the litigation is resolved or the lis pendens is expunged." BGJ Associates, LLC v. Superior Court, 75 Cal. App. 4th 952 (Cal. Ct. App. 1999). 1 RJN Ex. 9 ("Lis Pendens").2 2 auction on December 12, 2011. The property was sold at public RJN Ex. 8 ("Trustee's Deed") at 2. On February 13, 2012, Wells filed two motions: (1) to dismiss 3 4 the complaint and (2) to expunge the lis pendens. 5 Plaintiff responded by filing an amended complaint, which is the 6 operative complaint in this case. 7 amended complaint sets forth four claims: (1) quiet title under 8 Cal. Civ. Proc. Code § 760.020, (2) declaratory relief, (3) 9 injunctive relief, and (4) violation of California's Unfair United States District Court For the Northern District of California 10 ECF Nos. 12, 13. ECF No. 14 ("Am. Compl."). The Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq. Following the filing of the amended complaint, Wells formally 11 12 withdrew its motions to dismiss and expunge. 13 However, on March 9, 2012, Wells filed new motions to dismiss and 14 expunge. 15 because neither party has submitted further briefing, unopposed. ECF Nos. 18 ("MTD"), 19 ("MTE"). ECF Nos. 16, 17. Both are pending and, After the time for filing motions passed, but before the Court 16 17 issued an order, the parties asked to engage in Court-sponsored 18 mediation. 19 stayed the instant case pending completion of that process. 20 ECF No. 28 ("May 24 Order"). 21 settlement and the mediator certifies that no further mediation is 22 forthcoming. 23 statement signaling mutual intent to continue to litigate the case. 24 ECF No. 33. 25 pending motions to dismiss and expunge. Accordingly, the Court referred them to mediation and ECF No. 34. See The mediation session ended without Further, the parties have filed a joint Accordingly, the Court proceeds to the merits of the 26 27 28 2 Wells submitted a request for judicial notice. ECF No. 20 ("RJN"). The RJN is unopposed and the exhibits it contains are judicially noticeable public documents. Accordingly, the RJN is GRANTED and the Court takes judicial notice of the documents. 2 1 II. DISCUSSION 2 A. Motion to Dismiss 3 Wells's pending motion to dismiss, being unopposed, and good 4 cause appearing, is GRANTED. Having reviewed the amended complaint 5 carefully, the Court concludes that it contains little more than 6 "labels and conclusions," which do not support a viable cause of 7 action. 8 Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011). 9 Plaintiff's failure to articulate cognizable legal theories with See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Additionally, United States District Court For the Northern District of California 10 respect to three of his four claims provide another reason for 11 dismissal. 12 699 (9th Cir. 1988). 13 See Balistreri v. Pacifica Police Dept., 901 F.2d 696, As a preliminary matter, the Court notes that Plaintiff 14 improperly asserts two claims styled "declaratory relief" and 15 "injunctive relief." 16 relief. 17 depends on the viability of a legal claim entitling Plaintiff to 18 such relief. 19 "claims" are actually part of his prayer. 20 Plaintiff may still seek declaratory and injunctive relief in any 21 further pleading, provided that he asserts a claim that could give 22 rise to such relief, his standalone declaratory and injunctive 23 relief "claims" are DISMISSED WITH PREJUDICE. 24 These are types of relief, not claims to The availability of declaratory or injunctive relief Thus, Plaintiff's declaratory and injunctive relief Accordingly, though Plaintiff's two other claims, quiet title and UCL, are 25 DISMISSED WITH LEAVE TO AMEND. Plaintiff's quiet title claim fails 26 because Plaintiff does not allege tender. 27 must include: (1) a description of the property in question; (2) 28 the basis for plaintiff's title; and (3) the adverse claims to 3 "A quiet title action 1 plaintiff's title." Ananiev v. Aurora Loan Servs., LLC, C 12-2275 2 SI, 2012 WL 4099568, at *3 (N.D. Cal. Sept. 17, 2012) (citing Cal. 3 Civ. Proc. Code § 760.020). 4 requirement, plaintiff must allege that he has discharged his debt, 5 regardless to whom it is owed." 6 Registration Sys., Inc., 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 7 2009)). 8 and viable offer of tender. 9 01068 LB, 2012 WL 3834951, at *10 (N.D. Cal. Sept. 4, 2012) "In order to satisfy the second Id. (citing Kelley v. Mort. Elec. That is, to state a claim, Plaintiff must allege a valid See Chancellor v. OneWest Bank, C 12- United States District Court For the Northern District of California 10 (rejecting argument that California law excuses tender requirement 11 for quiet title claims). 12 does he do so. 13 allegations), 24-27 [sic 25-28] (quiet title claim). 14 his quiet title claim fails as insufficiently pled. 15 Nowhere in Plaintiff's amended complaint See Am. Compl. ¶¶ 10-23 [sic 24] (general Plaintiff's UCL claim also misses the mark. Accordingly, Plaintiff alleges 16 only legal conclusions and generalities. E.g., id. ¶ 39 (alleging, 17 without specifics, that Wells engaged in "a systematic, methodical, 18 and general practice of defrauding [its] customers, the general 19 public and the state and local government"). 20 allegations sound in fraud, but fall far short of satisfying the 21 heightened pleading standard of Rule 9(b). 22 rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 23 2011) ("To satisfy Rule 9(b), a pleading must identify the who, 24 what, when, where, and how of the misconduct charged, as well as 25 what is false or misleading about the purportedly fraudulent 26 statement, and why it is false.") (internal quotation marks and 27 brackets omitted). 28 amended complaint's general allegations by reference, he fails to Moreover, Plaintiff's See Cafasso, U.S. ex Additionally, while Plaintiff incorporates the 4 1 specify how these support his UCL claim. See Am. Compl. ¶¶ 37-41. 2 He also fails to identify on which "prong" of the UCL his claim 3 rests. 4 4th 832, 838-39 (1994) (distinguishing three prongs). 5 Plaintiff's UCL claim fails because he has yet to articulate a 6 cognizable theory of recovery or to plead specific facts supporting 7 it. See id.; see also Saunders v. Superior Court, 27 Cal. App. In short, Accordingly, his UCL claim is DISMISSED WITH LEAVE TO AMEND. Due to Plaintiff's failure to oppose Defendant's motion to 10 United States District Court B. 9 For the Northern District of California 8 expunge, the Court would be well within its discretion to grant the 11 motion. 12 should not be expunged, notwithstanding Wells being the moving 13 party. 14 Registration Sys., Inc., C 09-01605 SBA, 2012 WL 2792437, at *1 15 (N.D. Cal. July 9, 2012). 16 Plaintiff failed to carry his burden and effectively consented to 17 expungement. 18 Mortg. Services, Inc., C 10-03108 SBA, 2012 WL 1355691, at *4 (N.D. 19 Cal. Apr. 17, 2012). 20 complaint does not show "by a preponderance of the evidence the 21 probable validity of [his] real property claim." 22 Inc. v. Superior Court, 22 Cal. App. 4th 67, 70 (1994); see also 23 Carnero v. Fed. Home Loan Mortg. Corp., C 11-1029 WHA, 2012 WL 24 195408, at *3 (N.D. Cal. Jan. 23, 2012) (expunging lis pendens 25 because complaint failed to state a real property claim). 26 Motion to Expunge Lis Pendens Plaintiff bore the burden of proving that the lis pendens Cal. Civ. Proc. Code § 405.30; Cua v. Mortgage Elec. By failing to oppose Wells's motion, See Cua, 2012 WL 2792437, at *2; Sencion v. Saxon Additionally, Plaintiff's deficiently pled Hunting World, Because Plaintiff has leave to amend, however, the Court 27 exercises its discretion to deny the motion to expunge without 28 prejudice. Compare Meneses v. CitiMortgage, Inc., 5:11-CV-05227 5 1 EJD, 2012 WL 1428908, at *3 (N.D. Cal. Apr. 24, 2012) (complaint 2 dismissed with leave to amend; motion to expunge denied without 3 prejudice) with Unlu v. Wells Fargo Bank NA, 5:10-CV-5422 EJD, 2011 4 WL 6141036 (N.D. Cal. Dec. 9, 2011) (complaint dismissed without 5 leave to amend; motion to expunge granted). 6 to give Plaintiff one last chance to establish the "probable 7 validity" of a claim concerning the real estate at issue. The Court is inclined 8 9 United States District Court For the Northern District of California 10 III. CONCLUSION For the foregoing reasons, Defendant Wells Fargo Bank N.A.'s 11 motion to dismiss is GRANTED and its motion to expunge lis pendens 12 is DENIED WITHOUT PREJUDICE. 13 Plaintiff Richard Sowinski's amended complaint is DISMISSED. 14 His injunctive relief and declaratory relief "claims," because they 15 are prayers for relief rather than claims for relief, are dismissed 16 WITH PREJUDICE. 17 dismissed WITHOUT PREJUDICE. 18 Plaintiff's quiet title and UCL claims are Plaintiff may file a second amended complaint within thirty 19 (30) days from the signature date of this order. 20 Failure to do so may result in final dismissal of this case. 21 22 IT IS SO ORDERED. 23 24 25 Dated: November 26, 2012 UNITED STATES DISTRICT JUDGE 26 27 28 6

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