Cockrell v. Wells Fargo Bank, N.A.

Filing 30

Order by Hon. Samuel Conti granting 24 Motion to Dismiss.(sclc2, COURT STAFF) (Filed on 11/4/2013)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

United States District Court

For the Northern District of California

9
10
11
12
13
14
15
16

) Case No. CV 13-2072 SC
)
ERIKA COCKRELL, for the Estate ) ORDER GRANTING MOTION TO
of Dennis F. Cockrell,
) DISMISS
)
Plaintiff,
)
)
v.
)
)
WELLS FARGO BANK, N.A., and Does )
1-100, inclusive,
)
)
Defendants.
)
)
)
)

17
18
19

This is a foreclosure dispute.

Now before the Court is

20

Defendant Wells Fargo Bank, N.A.'s ("Defendant") motion to dismiss

21

Plaintiff Erika Cockrell's ("Plaintiff") first amended complaint.

22

ECF Nos. 23 ("FAC."), 24 ("MTD").

23

ECF Nos. 27 ("Opp'n"), 28 ("Reply").

24

below, Defendant's motion is GRANTED.

The motion is fully briefed.
For the reasons discussed

25
26
27
28

I.

INTRODUCTION
The parties are familiar with the facts of this case:

Plaintiff brings this action on behalf of her deceased father Mr.

1

Dennis F. Cockrell's estate.

Plaintiff's father had obtained a

2

mortgage loan from Defendant, on which he defaulted.

3

alleges that her father only defaulted because Defendant tricked

4

him into doing so.

5

claims against Defendant: (1) breach of the covenant of good faith

6

and fair dealing, (2) promissory estoppel, (3) breach of contract,

7

(4) intentional infliction of emotional distress, and (5) unfair

8

competition under California's Unfair Competition Law ("UCL"), Cal.

9

Bus. & Prof. Code §§ 17200, et seq.

Plaintiff

Accordingly Plaintiff asserts the following

United States District Court

For the Northern District of California

10
11
12

II.

LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure

13

12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

14

Block, 250 F.3d 729, 732 (9th Cir. 2001).

15

on the lack of a cognizable legal theory or the absence of

16

sufficient facts alleged under a cognizable legal theory."

17

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

18

1988).

19

should assume their veracity and then determine whether they

20

plausibly give rise to an entitlement to relief."

21

Iqbal, 556 U.S. 662, 679 (2009).

22

must accept as true all of the allegations contained in a complaint

23

is inapplicable to legal conclusions.

24

elements of a cause of action, supported by mere conclusory

25

statements, do not suffice."

26

Twombly, 550 U.S. 544, 555 (2007)).

27

complaint must be both "sufficiently detailed to give fair notice

28

to the opposing party of the nature of the claim so that the party

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

Ashcroft v.

However, "the tenet that a court

Threadbare recitals of the

Id. at 678 (citing Bell Atl. Corp. v.

2

The allegations made in a

1

may effectively defend against it" and "sufficiently plausible"

2

such that "it is not unfair to require the opposing party to be

3

subjected to the expense of discovery."

4

1202, 1216 (9th Cir. 2011).

Starr v. Baca, 652 F.3d

5
6

III. DISCUSSION

7

A.

8

Defendant claims that Plaintiff lacks standing because she has

9

Standing

no legal authority to litigate claims on behalf of her father's

United States District Court

For the Northern District of California

10

estate.

Defendant made this argument in its first motion to

11

dismiss, but the Court rejected it, partly because Plaintiff had

12

sufficiently pled that she was the executor and administrator of

13

her father's estate, and had maintained that position in her brief.

14

See ECF No. 21 ("July 23 Order") at 4.

15

brief contradicts her FAC, stating that there has been no probate

16

proceeding, so there is no dispute she is not the personal

17

representative, executor, or administrator of her father's estate.

18

See ECF No. 27-1 ("Adelaars Decl.") at 1-2.

19

Campbell, Warburton, Fitsimmons, Smith, Mendel & Pastore, 162 Cal.

20

App. 4th 1331, 1339-40 (Cal. Ct. App. 2008) ("personal

21

representative" or executor must be appointed by probate court).

22

In an attempt to mitigate this error, Plaintiff attaches to

Plaintiff's opposition

See Miller v.

23

her opposition brief a document attesting that she is the successor

24

trustee to her father's family trust.

25

Revocable Family Trust").

26

she was the heir and trustee of her father's estate, but in support

27

of this contention she cites only the attachments to her opposition

28

brief.

Id. Ex. A ("Cockrell

According to Plaintiff, she alleged that

Opp'n at 4.

3

1

Plaintiff's opposition brief directly contradicts her FAC,

2

and, moreover, the facts she cites in that brief are not referenced

3

in or incorporated into her pleadings. 1

4

Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.

5

1990) ("Generally, a district court may not consider any material

6

beyond the pleadings in ruling on a Rule 12(b)(6) motion"); Session

7

v. PLM Lender Services, Inc., No. 10–04942 WHA, 2011 WL 6748510, *5

8

(N.D. Cal. Dec. 22, 2011) ("A plaintiff cannot avoid dismissal of

9

her complaint by alleging new facts in opposition to a motion

See Hal Roach Studios,

United States District Court

For the Northern District of California

10

to dismiss."). 2

11

executor or administrator under probate law -- nothing else.

12

FAC ¶¶ 3-4 16.

13

FAC whether Plaintiff has standing in this case.

14

brief, "Plaintiff recognizes that her status as Trustee of her

15

father's property is not included in the Complaint and therefore

16

requests leave to allege standing."

Plaintiff's FAC pled that she is her father's
See

Accordingly the Court cannot find from Plaintiff's
In fact, in her

Opp'n at 4.

The Court therefore GRANTS Defendant's motion to dismiss

17
18

Plaintiff's FAC.

19

her pleading deficiencies with regard to standing.

20

reminded that Rule 11 attaches to every filing she makes before the

21

Court.

22

///

23

///

24

1

25
26
27
28

Plaintiff has leave to amend in order to correct
Plaintiff is

Another problem is that even if Plaintiff alleged that she was
the trustee, it is not clear whether that capacity gives her the
right to pursue these causes of action on behalf of the estate or
the trust.
2

Further, Plaintiff pleads that she presented Defendant with
probate documents showing that Plaintiff was her father's estate's
administrator -- a highly disturbing allegation now that it is
clear this is not the case.

4

1

B.

Plaintiff's Other Claims

2

In the interests of judicial efficiency and to avoid the

3

parties' re-litigating certain issues if Plaintiff files an amended

4

complaint, the Court also makes the following findings as to

5

Defendant's motion to dismiss.

6

Breach of the Implied Covenant: The Court previously dismissed

7

this claim with leave to amend, so that Plaintiff could plead facts

8

showing that Defendant actively hindered Mr. Cockrell's estate.

9

July 23 Order at 8.

In her FAC, Plaintiff continues to assert only

United States District Court

For the Northern District of California

10

that Defendant advised Mr. Cockrell to stop making payments.

11

FAC ¶¶ 22, 25.

12

The Court accordingly DISMISSES WITH PREJUDICE Plaintiff's breach

13

of the implied covenant claim.

14

See

This fails to cure Plaintiff's pleading defect.

Intentional Infliction of Emotional Distress ("IIED"): The

15

Court held that Plaintiff's original allegations as to this claim

16

were too far removed from Defendant's conduct to support

17

Plaintiff's claims.

18

that Mr. Cockrell told Defendant's agent, when the agent suggested

19

that Mr. Cockrell stop making payments, that the agent "better be

20

right, because [Mr. Cockrell] could not handle any more stress in

21

his life."

22

show that Defendant or its agents intentionally or recklessly

23

caused harm to Mr. Cockrell, or that the alleged conduct was

24

intolerably extreme.

25

Plaintiff's IIED claim.

26

July 23 Order at 11-12.

FAC ¶ 38.

Plaintiff now alleges

The Court finds that this is insufficient to

Therefore, the Court DISMISSES WITH PREJUDICE

UCL: Plaintiff's UCL unlawfulness claim relies in part on the

27

two above claims as predicate violations.

28

Plaintiff's UCL claim is DISMISSED WITH PREJUDICE so far as it

5

Since those claims fail,

1

relies on Plaintiff's breach of the implied covenant and IIED

2

claims.

3

that it is based on Plaintiff's promissory estoppel claim, which

4

remains undisturbed.

Plaintiff's UCL unlawfulness claim survives to the extent

The Court declines to address Defendant's joinder argument at

5
6

this time, as Plaintiff purports to bring this action solely as

7

trustee.

8

can re-plead her standing on those grounds, the Court makes no

9

finding as to joinder, though if Plaintiff chooses to allege other

United States District Court

For the Northern District of California

10

Since the Court has dismissed the FAC so that Plaintiff

grounds for standing, she should account for the joinder rules.

11
12 IV.

CONCLUSION

13

As explained above, the Court GRANTS Defendant Wells Fargo

14

Bank, N.A.'s motion to dismiss Plaintiff Erika Cockrell's first

15

amended complaint.

16

Order's signature date to file a second amended complaint.

17

fails to do so, this case may be dismissed with prejudice.

Plaintiff has thirty (30) days from this

18
19

IT IS SO ORDERED.

20
21
22

Dated: November 1, 2013
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28

6

If she