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)

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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

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