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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD SOWINSKI,
Plaintiff,

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For the Northern District of California

United States District Court

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v.

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WELLS FARGO BANK, N.A., and DOES
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Defendants.

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I.

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Case No. 11-6431-SC
ORDER GRANTING MOTION TO
DISMISS AND DENYING MOTION
TO EXPUNGE LIS PENDENS

INTRODUCTION
Plaintiff Richard Sowinski ("Plaintiff") challenges Defendant

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Wells Fargo Bank, N.A.'s ("Wells") foreclosure of his residential

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mortgage and the subsequent trustee sale of his residence.

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December 2, 2011, Plaintiff filed a complaint in California

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Superior Court, which Wells timely removed to this Court.

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1 (notice of removal) Ex. A (complaint).

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Plaintiff recorded a lis pendens1 against the subject property.

On

ECF No.

Also on December 2,

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"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).

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RJN Ex. 9 ("Lis Pendens").2

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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

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the complaint and (2) to expunge the lis pendens.

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Plaintiff responded by filing an amended complaint, which is the

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operative complaint in this case.

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amended complaint sets forth four claims: (1) quiet title under

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Cal. Civ. Proc. Code § 760.020, (2) declaratory relief, (3)

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injunctive relief, and (4) violation of California's Unfair

United States District Court

For the Northern District of California

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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

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withdrew its motions to dismiss and expunge.

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However, on March 9, 2012, Wells filed new motions to dismiss and

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expunge.

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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

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issued an order, the parties asked to engage in Court-sponsored

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mediation.

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stayed the instant case pending completion of that process.

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ECF No. 28 ("May 24 Order").

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settlement and the mediator certifies that no further mediation is

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forthcoming.

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statement signaling mutual intent to continue to litigate the case.

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ECF No. 33.

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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

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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.

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II.

DISCUSSION

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A.

Motion to Dismiss

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Wells's pending motion to dismiss, being unopposed, and good

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cause appearing, is GRANTED.

Having reviewed the amended complaint

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carefully, the Court concludes that it contains little more than

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"labels and conclusions," which do not support a viable cause of

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action.

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Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011).

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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

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respect to three of his four claims provide another reason for

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dismissal.

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699 (9th Cir. 1988).

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See Balistreri v. Pacifica Police Dept., 901 F.2d 696,

As a preliminary matter, the Court notes that Plaintiff

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improperly asserts two claims styled "declaratory relief" and

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"injunctive relief."

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relief.

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depends on the viability of a legal claim entitling Plaintiff to

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such relief.

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"claims" are actually part of his prayer.

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Plaintiff may still seek declaratory and injunctive relief in any

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further pleading, provided that he asserts a claim that could give

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rise to such relief, his standalone declaratory and injunctive

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relief "claims" are DISMISSED WITH PREJUDICE.

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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

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DISMISSED WITH LEAVE TO AMEND.

Plaintiff's quiet title claim fails

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because Plaintiff does not allege tender.

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must include: (1) a description of the property in question; (2)

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the basis for plaintiff's title; and (3) the adverse claims to

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"A quiet title action

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plaintiff's title."

Ananiev v. Aurora Loan Servs., LLC, C 12-2275

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SI, 2012 WL 4099568, at *3 (N.D. Cal. Sept. 17, 2012) (citing Cal.

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Civ. Proc. Code § 760.020).

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requirement, plaintiff must allege that he has discharged his debt,

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regardless to whom it is owed."

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Registration Sys., Inc., 642 F. Supp. 2d 1048, 1057 (N.D. Cal.

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2009)).

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and viable offer of tender.

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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

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(rejecting argument that California law excuses tender requirement

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for quiet title claims).

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does he do so.

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allegations), 24-27 [sic 25-28] (quiet title claim).

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his quiet title claim fails as insufficiently pled.

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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

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only legal conclusions and generalities.

E.g., id. ¶ 39 (alleging,

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without specifics, that Wells engaged in "a systematic, methodical,

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and general practice of defrauding [its] customers, the general

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public and the state and local government").

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allegations sound in fraud, but fall far short of satisfying the

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heightened pleading standard of Rule 9(b).

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rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir.

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2011) ("To satisfy Rule 9(b), a pleading must identify the who,

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what, when, where, and how of the misconduct charged, as well as

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what is false or misleading about the purportedly fraudulent

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statement, and why it is false.") (internal quotation marks and

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brackets omitted).

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amended complaint's general allegations by reference, he fails to

Moreover, Plaintiff's

See Cafasso, U.S. ex

Additionally, while Plaintiff incorporates the

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specify how these support his UCL claim.

See Am. Compl. ¶¶ 37-41.

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He also fails to identify on which "prong" of the UCL his claim

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rests.

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4th 832, 838-39 (1994) (distinguishing three prongs).

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Plaintiff's UCL claim fails because he has yet to articulate a

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cognizable theory of recovery or to plead specific facts supporting

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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

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United States District Court

B.

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For the Northern District of California

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expunge, the Court would be well within its discretion to grant the

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motion.

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should not be expunged, notwithstanding Wells being the moving

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party.

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Registration Sys., Inc., C 09-01605 SBA, 2012 WL 2792437, at *1

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(N.D. Cal. July 9, 2012).

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Plaintiff failed to carry his burden and effectively consented to

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expungement.

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Mortg. Services, Inc., C 10-03108 SBA, 2012 WL 1355691, at *4 (N.D.

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Cal. Apr. 17, 2012).

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complaint does not show "by a preponderance of the evidence the

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probable validity of [his] real property claim."

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Inc. v. Superior Court, 22 Cal. App. 4th 67, 70 (1994); see also

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Carnero v. Fed. Home Loan Mortg. Corp., C 11-1029 WHA, 2012 WL

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195408, at *3 (N.D. Cal. Jan. 23, 2012) (expunging lis pendens

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because complaint failed to state a real property claim).

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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

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exercises its discretion to deny the motion to expunge without

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prejudice.

Compare Meneses v. CitiMortgage, Inc., 5:11-CV-05227

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EJD, 2012 WL 1428908, at *3 (N.D. Cal. Apr. 24, 2012) (complaint

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dismissed with leave to amend; motion to expunge denied without

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prejudice) with Unlu v. Wells Fargo Bank NA, 5:10-CV-5422 EJD, 2011

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WL 6141036 (N.D. Cal. Dec. 9, 2011) (complaint dismissed without

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leave to amend; motion to expunge granted).

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to give Plaintiff one last chance to establish the "probable

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validity" of a claim concerning the real estate at issue.

The Court is inclined

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United States District Court

For the Northern District of California

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III. CONCLUSION
For the foregoing reasons, Defendant Wells Fargo Bank N.A.'s

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motion to dismiss is GRANTED and its motion to expunge lis pendens

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is DENIED WITHOUT PREJUDICE.

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Plaintiff Richard Sowinski's amended complaint is DISMISSED.

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His injunctive relief and declaratory relief "claims," because they

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are prayers for relief rather than claims for relief, are dismissed

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WITH PREJUDICE.

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dismissed WITHOUT PREJUDICE.

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Plaintiff's quiet title and UCL claims are

Plaintiff may file a second amended complaint within thirty

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(30) days from the signature date of this order.

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Failure to do so

may result in final dismissal of this case.

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IT IS SO ORDERED.

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Dated:

November 26, 2012
UNITED STATES DISTRICT JUDGE

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