Tuttle v. Wells Fargo Bank, N.A. et al

Filing 55

ORDER by Chief Magistrate Judge Joseph C. Spero granting 32 Motion to Remand; denying for lack of jurisdiction 34 Motion to Dismiss. (jcslc2S, COURT STAFF) (Filed on 5/29/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JASON TUTTLE, et al., 7 Case No. 18-cv-01544-JCS Plaintiffs, 8 v. 9 WELLS FARGO BANK, N.A., et al., 10 Defendants. ORDER GRANTING MOTION TO REMAND AND DENYING MOTION TO DISMISS Re: Dkt. Nos. 34, 36 United States District Court Northern District of California 11 12 I. INTRODUCTION This action was initially filed in state court. Plaintiffs Jason Tuttle and Mary Kathleen 13 14 Tuttle assert several claims under California law pertaining to a pending foreclosure of the Tuttles’ 15 home in San Rafael, California against Defendants Wells Fargo Bank, N.A. (“Wells Fargo”), 16 Wells Fargo Home Mortgage, 1 and Barrett Daffin Frappier Treder & Weiss LLP (“Barrett 17 Daffin”). Wells Fargo removed to this Court asserting diversity jurisdiction under 28 U.S.C. 18 § 1332, and contending that the Court should disregard Barrett Daffin as fraudulently joined and 19 as a nominal defendant. The Tuttles move to remand, and the Court held a hearing on May 25, 20 2018. For the reasons discussed below, the Tuttles’ motion is GRANTED, except as to their 21 request for attorneys’ fees, and this action is REMANDED to the California Superior Court for the 22 County of Marin.2 Because this Court lacks jurisdiction over the action, Wells Fargo’s pending 23 motion to dismiss is DENIED without prejudice to raising any arguments in state court. 24 25 26 27 28 1 Wells Fargo asserts in its notice of removal, and the Tuttles do not dispute, that Wells Fargo Home Mortgage is a division of Wells Fargo and was erroneously named as a separate defendant. This order therefore disregards Wells Fargo Home Mortgage for the purpose of analyzing diversity jurisdiction and remand. 2 The parties have consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c). 1 II. BACKGROUND 2 A. 3 The Tuttles allege that on October 5, 2006, they refinanced their home mortgage with Allegations of the First Amended Complaint 4 World Savings Bank, FSB, which was later acquired by Wells Fargo. 1st Am. Compl. (“FAC,” 5 dkt. 30) ¶¶ 20, 22. On March 17, 2017, Wells Fargo denied an application for loan modification, 6 citing “the results of [the Tuttles’] net present value (NPV) evaluation.” Id. ¶¶ 24–25. According 7 to the Tuttles, Wells Fargo failed to include required information in its denial letter and did not 8 respond to a letter requesting that information. Id. ¶¶ 26–31. The Tuttles appealed the denial on 9 April 13, 2017, but Defendants nevertheless recorded a notice of trustee’s sale on January 5, 2018. Id. ¶¶ 30, 32. The Tuttles contend that they were and are well qualified for a loan modification. 11 United States District Court Northern District of California 10 Id. ¶¶ 32–37, 44. A Wells Fargo representative acknowledged on February 12, 2018 that the 12 Tuttles had a complete application pending and that Wells Fargo had not postponed the trustee’s 13 sale, then set for February 20, 2018. Id. ¶ 38. After the Tuttles received a temporary restraining 14 order in state court, Wells Fargo rescheduled the sale for May 3, 2018, which remained the 15 scheduled date at the time that the Tuttles filed their operative amended complaint. Id. ¶ 40. The 16 Tuttles had not received a decision on the appeal of Wells Fargo’s denial of their application at 17 that time, and Wells Fargo had nevertheless failed to postpone the foreclosure sale further. Id. 18 ¶¶ 42–43. 19 The Tuttles bring five claims under state law. First, they assert that Defendants violated 20 California Civil Code section 2923.6(c) because Wells Fargo has proceeded towards a foreclosure 21 sale even though the Tuttles have a complete application for loan modification pending, and 22 because Barrett Daffin has scheduled and proceeded towards the sale despite Wells Fargo’s 23 violation. Id. ¶¶ 45–55. Second, the Tuttles assert that Wells Fargo violated Civil Code section 24 2923.7 by failing to provide a single point of contact with access to someone with authority to stop 25 foreclosure proceedings, and again assert that Barrett Daffin violated the same statute by 26 proceeding towards foreclosure despite Wells Fargo’s violation. Id. ¶¶ 56–60. Third, the Tuttles 27 assert that Wells Fargo violated Civil Code section 2924.11 by proceeding towards a foreclosure 28 sale while a modification application was pending and by failing to provide sufficient 2 1 documentation supporting its denial letter. Id. ¶¶ 69–73. Once again, the Tuttles assert that 2 Barrett Daffin violated the same statute by proceeding towards foreclosure despite Wells Fargo’s 3 violation. Id. ¶ 74. The Tuttles’ fourth claim asserts that both Wells Fargo and Barrett Daffin 4 violated California’s Unfair Competition Law by virtue of the Civil Code violations addressed 5 above, and their fifth claim is for negligence against Wells Fargo. Id. ¶¶ 76–90. 6 B. 7 Wells Fargo removed to this Court on March 12, 2018, asserting diversity jurisdiction Notice of Removal and Arguments Regarding Remand 8 under 28 U.S.C. § 1332. See generally Notice of Removal (dkt. 1). Wells Fargo states that the 9 parties are diverse because Jason Tuttle is a citizen of California 3 and Wells Fargo is a citizen of South Dakota, and that although Barrett Daffin is also a citizen of California, its citizenship should 11 United States District Court Northern District of California 10 be disregarded because it is a nominal party and “no viable claim exists against [it].” Id. at 2–7. 12 Wells Fargo contends that the duties of a trustee under a deed of trust are purely ministerial, and 13 that Barrett Daffin’s duties are privileged under California law absent a showing of malice. Id. at 14 5–7. Wells Fargo also contends that the amount in controversy exceeds $75,000 and that removal 15 was timely. Id. at 7–10. The Tuttles move to remand on the grounds that there is not complete diversity—because 16 17 Barrett Daffin is a citizen of California—and that Wells Fargo has not met its burden to show 18 fraudulent joinder. See generally Mot. to Remand (dkt. 32). The Tuttles note that the California 19 Homeowner Bill of Rights (“HBOR”) provisions on which they base their claims specifically 20 include a “trustee” as among the parties bound thereby, and that if a wrongful foreclosure sale 21 actually occurs, a trustee can be held liable for actual economic damages. Id. at 8–9. The Tuttles 22 contend that these statutes supersede any need to show actual malice under the common law. Id. 23 at 9–10. The Tuttles cite a number of district court decisions holding that trustees were not 24 fraudulently joined nominal parties in foreclosure cases, including this Court’s decision in 25 Rankankan v. JP Morgan Chase Bank, N.A., No. 16-cv-01694-JCS, 2016 WL 3411522 (N.D. Cal. 26 June 22, 2016). Mot. to Remand at 10–12. The Tuttles request their costs and attorneys’ fees 27 28 3 Mary Kathleen Tuttle had not yet been added as a plaintiff at the time of removal, but no party disputes that she is also a citizen of California. 3 1 because “removal was clearly improper,” and submit a declaration from their counsel Nelson 2 Goodell stating that he anticipates spending 9.4 hours working on the motion to remand and 3 attending the hearing at a rate of $300 per hour, for a total request of $2,820. Id. at 12–13; see 4 generally Goodell Decl. (dkt. 32-1). 5 Wells Fargo opposes remand, arguing that Barrett Daffin is fraudulently joined because its duties as trustee were narrow and it only acted as an agent of Wells Fargo, not in its own interest. 7 Opp’n (dkt. 39) at 2–3. Wells Fargo cites a number of district court decisions remanding cases on 8 the basis that trustee defendants were fraudulently joined—most, but not all, of which were 9 decided before the HBOR became effective in 2013. Id. at 3–7 (citing, e.g., Ogamba v. Wells 10 Fargo Bank, N.A., No. 2:17-cv-01754-KJM-AC, 2017 WL 4251124 (E.D. Cal. Sept. 26, 2017) 11 United States District Court Northern District of California 6 (appeal pending); Marquez v. Wells Fargo Bank, N.A., No. C 13-2819 PJH, 2013 WL 5141689 12 (N.D. Cal. Sept. 13, 2013)). Wells Fargo does not distinguish or otherwise discuss the decisions 13 cited by the Tuttles that reached the opposite conclusion. See generally id. Wells Fargo also 14 argues that Barrett Daffin’s actions were privileged communications under the common interest 15 privilege codified at sections 47(c) and 2924(d) of the California Civil Code. Id. at 5–6. Wells 16 Fargo contends that even if the Court grants the motion to remand, this is not the sort of unusual 17 case where attorneys’ fees should be awarded. Id. at 7. Wells Fargo also erroneously asserts that 18 the Tuttles failed to submit a declaration from counsel stating the fees incurred. Id. 19 The Tuttles argue in their reply that the Ogamba court erred in applying a Rule 12(b)(6) 20 analysis to the question of fraudulent joinder, and that that case should have been remanded under 21 the more demanding standard that the Ninth Circuit has articulated for establishing fraudulent 22 joinder. Reply (dkt. 45) at 4. According to the Tuttles, “the overwhelming majority of the recent 23 case law holds that non-judicial foreclosure trustees that are accused of violating the California 24 Homeowners Bill of Rights are not ‘fraudulently joined’ parties.” Id. at 5 (citing district court 25 decisions). The Tuttles contend that the “actual malice” standard is only necessary for a plaintiff 26 to recover monetary damages from a trustee and is not necessary to obtain injunctive relief, which 27 the Tuttles seek here. Id. at 5–6. The Tuttles also assert that Barrett Daffin has been actively 28 involved in the foreclosure process, and refused to postpone the foreclosure sale even after being 4 1 contacts by the Tuttles’ attorney and apprised of the claims in this case, stating that it would only 2 postpone the sale if Wells Fargo instructed it to. Id. at 6–7. In a second declaration, attorney 3 Nelson Goodell states that despite Barrett Daffin’s representation that it would postpone the sale at 4 Wells Fargo’s request, Wells Fargo sent the Tuttles an email on the scheduled day of the sale 5 stating that it would postpone the sale, but Barrett Daffin nevertheless did not postpone the 6 foreclosure sale until after the state court issued a temporary restraining order. See generally 7 Goodell Reply Decl. (dkt. 45-1). The Tuttles state that they could amend their complaint to more 8 clearly describe Barrett Daffin’s involvement if necessary. Reply at 7. 9 The Tuttles also respond to a footnote in which Wells Fargo noted that the Tuttles did not object to Barrett Daffin’s declaration of non-monetary status in state court, citing a number of 11 United States District Court Northern District of California 10 district court decisions holding that such declarations are not relevant to federal courts’ analysis 12 and arguing that even if such declaration could be relevant in this Court, it has no effect in this 13 case, where Wells Fargo removed from state court before the time to object to the declaration of 14 non-monetary status had expired. Id. at 10–12. The Tuttles also reiterate their argument that they 15 are entitled to attorneys’ fees. Id. at 12–13. 16 Barrett Daffin has not addressed the motion to remand, but filed a notice of joinder in 17 Wells Fargo’s separate motion to dismiss the action, which the Court does not reach. See 18 generally Joinder (dkt. 36). In that filing, Barrett Daffin asserts that a trustee is not liable for good 19 faith performance of its duties related to foreclosure, even if its actions are erroneous. Id. at 4–5. 20 According to Barrett Daffin, a plaintiff must show malice to prevail against a trustee, which 21 “means the publication was motivated by hatred or ill will towards the plaintiff or [that] the 22 defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted 23 in reckless disregard of the plaintiff’s rights.” Id. at 5 (citing Kachlon v. Markowitz, 168 Cal. App. 24 4th 316, 336 (2008)). Barrett Daffin contends that the Tuttles’ allegations regarding its 25 involvement are too conclusory to meet the pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 26 678 (2009). Joinder at 5. 27 28 5 1 III. ANALYSIS 2 A. 3 Federal courts have limited subject matter jurisdiction, and may only hear cases falling Legal Standard for Remand within their jurisdiction. Generally, a defendant may remove a civil action filed in state court if 5 the action could have been filed originally in federal court. 28 U.S.C. § 1441. The removal 6 statutes are construed restrictively so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. 7 v. Sheets, 313 U.S. 100, 108−09 (1941). The Ninth Circuit recognizes a “strong presumption 8 against removal.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal quotation marks 9 omitted). Any doubts as to removability should be resolved in favor of remand. Matheson v. 10 Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). The defendant bears the 11 United States District Court Northern District of California 4 burden of showing that removal is proper. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th 12 Cir. 2004). 13 B. 14 Wells Fargo asserts that this Court has subject matter jurisdiction based on diversity of Legal Standard for Diversity Jurisdiction and Fraudulent Joinder 15 citizenship pursuant to 28 U.S.C. § 1332. In relevant part, that statute provides federal courts with 16 jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of 17 $75,000” that are between “citizens of different States.” 28 U.S.C. § 1332(a). Diversity 18 jurisdiction under § 1332(a) “applies only to cases in which the citizenship of each plaintiff is 19 diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 20 There is no dispute here that the parties named in the Tuttles’ Complaint do not meet that 21 requirement because Barrett Daffin, like the Tuttles, is a citizen of California. Wells Fargo argues 22 instead that Barrett Daffin, as trustee under a deed of trust, is a mere nominal defendant irrelevant 23 for diversity, and is fraudulently joined. See Notice of Removal at 5–6. 24 “[F]raudulently joined defendants will not defeat removal on diversity grounds.” Ritchey 25 v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). “The term ‘fraudulent joinder’ is a 26 term of art, used for removal purposes, and does not connote any intent to deceive on the part of 27 plaintiff or his counsel.” Plute v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 n.2 28 (N.D. Cal. 2001). 6 1 “Joinder of a non-diverse defendant is deemed fraudulent, and the defendant’s presence in 2 the lawsuit is ignored for purposes of determining diversity, if the plaintiff fails to state a cause of 3 action against a resident defendant, and the failure is obvious according to the settled rules of the 4 state.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Just as there is a 5 presumption against removal, there is a “general presumption against fraudulent joinder.” Hunter 6 v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009). When analyzing the issue of 7 fraudulent joinder, “[a]ll doubts concerning the sufficiency of a cause of action because of inartful, 8 ambiguous or technically defective pleading must be resolved in favor of remand, and a lack of 9 clear precedent does not render the joinder fraudulent.” Krivanek v. Huntsworth Grp. LLC, No. 15-CV-02466-HSG, 2015 WL 5258788, at *2 (N.D. Cal. Sept. 9, 2015) (citation and internal 11 United States District Court Northern District of California 10 quotation marks omitted). “[T]he test for fraudulent joinder and for failure to state a claim under 12 Rule 12(b)(6) are not equivalent,” and the Ninth Circuit has “emphasized . . . that a federal court 13 must find that a defendant was properly joined and remand the case to state court if there is a 14 ‘possibility that a state court would find that the complaint states a cause of action against any of 15 the [non-diverse] defendants.’” GranCare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, __ (9th 16 Cir. 2018) (quoting Hunter, 582 F.3d at 1046) (alteration and emphasis added in GranCare). 17 Accordingly, the Court must grant the motion “unless the defendant shows that the plaintiff would 18 not be afforded leave to amend [the] complaint to cure [the] purported deficiency.” Rieger v. 19 Wells Fargo Bank, Nat’l Ass’n, No. 3:13-0749-JSC, 2013 WL 1748045, at *3 (N.D. Cal. Apr. 23, 20 2013) (second alteration in original) (citation and internal quotation marks omitted); see also 21 Macey v. Allstate Prop. & Cas. Ins. Co., 220 F. Supp. 2d 1116, 1117 (N.D. Cal. 2002) (stating that 22 remand is proper where “there is a non-fanciful possibility that plaintiff can state a claim”). 23 The existence of federal jurisdiction is generally determined from the plaintiff’s pleadings. 24 See Ritchey, 139 F.3d at 1318. On the issue of fraudulent joinder, however, a defendant is 25 “entitled to present the facts showing the joinder to be fraudulent.” Morris, 236 F.3d at 1067. If 26 factual issues are in dispute, the Court must resolve “all disputed questions of fact . . . in the 27 plaintiff’s favor.” Hornby v. Integrated Project Mgmt., Inc., No. C 14-04331 LB, 2014 WL 28 7275179, at *5 (N.D. Cal. Dec. 22, 2014) (citing Kruso v. Int’l Tel. & Tel. Corp., 872 F.2d 1416, 7 1 1426 (9th Cir. 1989)). While courts usually may not decide the merits of an affirmative defense to 2 determine whether a plaintiff’s claims obviously fail under the settled rules of the state, courts may 3 consider procedural bars such as statutes of limitation. Hunter, 582 F.3d at 1045 (citing Ritchey, 4 139 F.3d at 1319). 5 C. 6 Remand of this case is appropriate for largely the same reasons as in this Court’s previous Wells Fargo Has Not Met Its Burden to Establish Federal Jurisdiction 7 decision in Rankankan, cited by the Tuttles. The relevant portion of the Court’s analysis in that 8 case reads as follows: 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 District courts have repeatedly held that mere failure to state a claim is not sufficient to establish fraudulent joinder if a plaintiff would be entitled to leave to amend to cure any deficiency. See, e.g., Suelen v. Wells Fargo Bank, N.A., No. C-13-002 MEJ, 2013 WL 1320697, at *3 (N.D. Cal. Apr. 1, 2013); Rieger, 2013 WL 1748045, at *3; Padilla v. AT & T Corp., 697 F. Supp. 2d 1156, 1159 (C.D. Cal. 2009); Burris v. AT & T Wireless, Inc., No. C 06-02904 JSW, 2006 WL 2038040, at *1 (N.D. Cal. July 19, 2006). This standard gives effect to the established “presumption against fraudulent joinder,” Hunter, 582 F.3d at 1046 (citation omitted), and the rule that “[w]here doubt regarding the right to removal exists, a case should be remanded to state court,” Matheson, 319 F.3d at 1090. So long as Rankankan might be able to amend to state a viable claim against [trustee] MTC, this Court’s jurisdiction is in doubt, while the California Superior Court’s jurisdiction over the case is unquestionable. Further, while this Court has some authority under the fraudulent joinder doctrine to determine whether Rankankan has “obvious[ly]” failed to state a claim against MTC, see Morris, 236 F.3d at 1067, reviewing multiple rounds of amended pleadings to parse the sufficiency of those claims would cross the line from merely conducting that threshold inquiry to instead presiding over a dispute under state law between two California citizens, which would fall outside the scope of § 1332’s grant of jurisdiction. 21 Rankankan v. JP Morgan Chase Bank, N.A., No. 16-cv-01694-JCS, 2016 WL 3411522, at *5 22 (N.D. Cal. June 22, 2016) (alterations within internal quotations in original). 23 Here, as in Rankankan, Wells Fargo presents reasonable arguments why the Tuttles claims 24 against Barrett Daffin, as currently pleaded, might warrant dismissal, but does not sufficiently 25 address the question of whether the Tuttles could state a claim against Barrett Daffin. The HBOR 26 specifically allows claims against trustees involved with non-judicial foreclosure sales. See, e.g., 27 Cal. Civ. Code § 2924.12. Even assuming for the sake of argument that the Tuttles must allege 28 malice to overcome the common interest privilege in bringing such a claim and that their current 8 1 complaint does not do so, the standard for such a showing is not insurmountable. As Barrett 2 Daffin acknowledges in its joinder in Wells Fargo’s motion to dismiss, see Joinder at 5, “malice” 3 within the meaning of the relevant privilege doctrine can be established “by a showing that the 4 defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted 5 in reckless disregard of the plaintiff’s rights.” Kachlon v. Markowitz, 168 Cal. App. 4th 316, 336 6 (2008) (quoting Sanborn v. Chronicle Publ’g Co., 18 Cal. 3d 406, 413 (1976)). The Tuttles raise a 7 colorable argument that they could allege such recklessness based on Barrett Daffin’s failure to 8 postpone the foreclosure sale after being informed of the Tuttles’ claims in this case and even after 9 Wells Fargo informed the Tuttles that the sale would be postponed. See Goodell Reply Decl. ¶¶ 3–4. Barrett Daffin’s purported failure to postpone the sale after Wells Fargo indicated that it 11 United States District Court Northern District of California 10 would do so also suggests that the Tuttles might be able to allege that Barrett Daffin acted in its 12 own interest rather than merely as an agent of Wells Fargo. While it is not at all clear that the 13 Tuttles’ current complaint sufficiently alleges such a claim, the remedy on a successful motion to 14 dismiss under these circumstances would be dismissal with leave to amend, not with prejudice, 15 and “reviewing multiple rounds of amended pleadings to parse the sufficiency of those claims 16 would cross the line from merely conducting [a] threshold inquiry to instead presiding over a 17 dispute under state law between two California citizens, which would fall outside the scope of 18 § 1332’s grant of jurisdiction.” See Rankankan, 2016 WL 3411522, at *5. At the hearing, counsel for Wells Fargo argued that even if Wells Fargo has not met its 19 20 burden to show that Barrett Daffin is fraudulently joined, the test for whether Barrett Daffin is a 21 nominal party is more easily met and should be based only on the allegations of the Tuttles’ 22 original complaint. In the absence of authority so holding, the Court is not persuaded that the 23 scope of the inquiry materially differs from the fraudulent joinder analysis discussed above. 24 Presiding over this action while the Tuttles seek to—and conceivably could—state a claim against 25 a fellow citizen of California as more than merely a nominal party would exceed the scope of this 26 Court’s jurisdiction under § 1332. The motion to remand is therefore GRANTED.4 27 28 The Court agrees with the Tuttles that Barrett Daffin’s declaration of non-monetary status in state court does not alter the analysis. Without reaching the question of whether such filings are 9 4 The Court Declines to Award Attorneys’ Fees 1 D. 2 If a case is improperly removed, “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 4 U.S.C. § 1447(c). An award of attorneys’ fees may be appropriate where removal has been 5 “sought for the purpose of prolonging litigation and imposing costs on the opposing party,” and 6 “the standard for awarding fees should turn on the reasonableness of the removal.” Martin v. 7 Franklin Capital Corp., 546 U.S. 132, 140–41 (2005). The reasonableness of Wells Fargo’s 8 removal in this case is a close questions given Wells Fargo’s failure to address meaningfully the 9 demanding standard for establishing fraudulent joinder, as well as the numerous district court 10 decisions remanding cases under similar circumstances. On the other hand, while this Court 11 United States District Court Northern District of California 3 respectfully disagrees with its reasoning, at least one court has found fraudulent joinder under 12 analogous circumstances. See Ogamba v. Wells Fargo Bank, N.A., No. 2:17-cv-01754-KJM-AC, 13 2017 WL 4251124, at *3 (E.D. Cal. Sept. 26, 2017). And while it is not the role of this Court to 14 test the question through additional rounds of amendment, the Tuttles’ boilerplate allegations in 15 both their original complaint and first amended complaint as to Barrett Daffin’s involvement also 16 suggest a real possibility that Barrett Daffin is in fact no more than a nominal party. The Court 17 therefore concludes that Wells Fargo’s removal was not so unreasonable as to warrant a sanction 18 of attorneys’ fees, and DENIES the Tuttles’ request. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 26 27 28 ever relevant in federal court, Barrett Daffin’s declaration did not become effective before Wells Fargo removed the case to this Court. See Boggs v. Wells Fargo Bank NA, No. C 11-2346 SBA, 2012 WL 2357428, at *3 (N.D. Cal. June 14, 2012). Moreover, a “summary mention of an issue in a footnote, without reasoning in support of the . . . argument,” is not sufficient to raise the issue. See Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996). 10 1 2 IV. CONCLUSION For the reasons discussed above, the Tuttles’ motion is GRANTED, except as to attorneys’ 3 fees. Wells Fargo’s motion to dismiss is DENIED for lack of jurisdiction. This action is hereby 4 REMANDED to the California Superior Court for the County of Marin. 5 6 7 8 IT IS SO ORDERED. Dated: May 29, 2018 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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